• 
wain  Lib. 


LIBRARY 

OF  THE 

University  of  California. 


Class 


SELECTED   CASES 


ON  THE 


LAW   OF  OFFICERS 


INCLUDING 


EXTRAORDINARY  LEGAL  REMEDIES 


EDITED  BY 


FRANK  J.    GOODNOW, 

Eaton  pRorsssoR  of  Admimistrativb  Law  and  MnmciFAit 

SCIKMCE  IN  COI.UMBIA  UnIVKRSITT. 


CHICAGO 

CALLAGHAN   &  COMPANY 

1906 


0,0 


C!OPYBIOHT    1906 
BT 

CALLAGHAN  &   COMPANY 


M.  H.   VB8TAL 

BOOK  OOMPOSITIOn 

OHIOAQO 


PREFACE. 


The  collection  of  cases  on  the  Law  of  Officers  which  is  herewith 
offered  to  the  public,  the  editor  hopes  will  fill  a  gap  in  the  course 
of  instruction  in  those  law  schools  which  have  adopted  in  principle 
the  case  method  of  instruction,  and  which  desire  to  devote  some  at- 
tention to  this  important  subject. 

While  complete  in  itself  this  collection  is  a  part — a  greater  part 
it  is  true — of  a  collection  on  the  general  subject  of  Administrative 
Law.  References  have  therefore  been  made  in  the  foot  notes  ap- 
pended to  specific  cases,  to  cases  which  have  been  set  forth  in  ex- 
tenso  in  the  other  part  devoted  to  the  **  Organization  of  the  Ad- 
ministrative Authorities. '  * 

As  the  sub-title  indicates,  special  attention  has  been  given  to  the 
Extraordinary  Legal  Remedies,  which  are  of  course  the  most  im- 
portant means  through  which  the  courts  hold  purely  administra- 
tive officers  up  to  their  duties  as  set  forth  in  the  law.  In  those  law 
schools  in  which  no  special  course  is  given  for  the  study  of  this 
subject  this  collection  may  serve  the  double  purpose  of  offering  a 
means  for  the  study  by  the  case  method  of  the  extraordinary  reme- 
dies as  well  as  the  general  law  of  officers.  The  instructor  will  find 
it  profitable,  however,  from  this  point  of  view,  to  supplement  the 
cases  selected  by  considerable  oral  exposition  in  reference  to  other 
cases  setting  forth  the  law  in  its  details. 

The  editor  cannot  close  these  prefatory  remarks  without  ac- 
knowledging his  great  indebtedness  to  Professor  Floyd  R.  Mechem 
of  the  University  of  Chicago,  whose  admirable  treatise  on  Officers 
has  been  of  the  greatest  service  to  him.  The  order  adopted  by 
Professor  Mechem  has  in  most  cases  been  the  order  in  which  the 
cases  selected  have  been  arranged.  The  editor  thinks  that  those 
who  may  do  him  the  honor  of  choosing  this  collection  for  their 
class-room  work  will  find  it  of  the  greatest  value  to  recommend  to 
their  students  the  reading  of  Professor  Mechem 's  work  in  connec- 
tion with  their  case  work.  Acknowledgement  is  also  due  to  Pro- 
fessor Ernst  Freund  of  the  University  of  Chicago  for  according  to 
the  editor  the  opportunity  to  examine  a  collection  of  cases  on  **  Ad- 
ministrative Law"   from  which   a  number   of   cases  have  been 

^^^®^*^^-  Frank  J.  Goodnow. 

Columbia  University,  May,  1906. 

iii 

228435 


TABLE   OF   CONTENTS 


CHAPTER   I. 
OFFICES  AND  OFFICERS. 

PAGE 

I.    What  is  an  Office?  1 

Hall  V.  Wisconsin,  103  United  States  5. 
Butler  V.  Pennsylvania,  10  Howard  (U.  S.)  402. 
Olrastead  v.  Mayor,  42  Superior  .Court  (N.  Y.)  481. 
Brown  v.  Turner,  70  North  Carolina  93. 
United  States  v.  Germaine,  99  United  States  508. 

II.    Legislative  Control  of  Offices.  17 

Overshiner  v.  The  State,  156  Indiana  187. 
Indianapolis  Brewing  Company  v.  Claypool,  149  Indiana  193. 
Koch  v.  Mayor,  &c.,  152  New  York  72. 

CHAPTER   II. 

THE  FORMATION  OF  THE  OFFICIAL  RELATION. 

1.    The  Law  of  Elections. 

1.    The  Bight  to  Vote.  27 

Kinneen  v.  Wells,  144  Massachusetts  497. 
Rogers  v.  Jacobs,  88  Kentucky  502. 
Attorney  General  v.  Common  Council,  78  Michigan  545, 
Maynard  v.  Board,  84  Michigan  228. 
Hanna  v.  Young,  84  Maryland  179. 

2.    Power  of  the  Legislature  to  Regulate  the  Right  to  Vote.      49 
Ransom  v.  Black,  54  New  Jersey  Law  446. 

3.     Construction  of  Election  Regulations.  56 

Boyd  V.  Mills,  53  Kansas  594. 
Page  V.  Kuykendall,  161  Illinois  319. 

4.    Powers  of  Boards  of  Canvassers.  62 

People  V.  Van  Cleve,  1  Michigan  362. 
Hadley  v.  The  Mayor,  33  New  York,  603. 
Lewis  V.  Commissioners,  16  Kansas  102. 

V 


VI  TABLE  OP  CONTENTS. 

PAOK 

5,     What  Constitutes  an  Election.  67 

People  V.  Clute,  50  New  York  451. 

6.    Nominations  to  Office.  72 

Stephenson  v.  Board,  118  Michigan  396. 
People  V.  Democratic  Committee,  164  New  York  335. 

IL    The  Law  op  Appointment. 

1.  Nature  of  the  Power  to  Appoint.  84 
People  V.  Mosher,  163  New  York  32. 

State  V.  Peelle,  124  Indiana  515. 

2.    How  Exercised.  94 

People  V.  Murray,  70  New  York  521. 

3.    When  Exercised.  98 

Marbury  v.  Madison,  1  Cranch  (U.  S.)  137. 
State  V.  Crawford,  28  Florida  441. 

4.    Power  to  Fill  Vac/incies.  121 

Pritts  V.  Kuhl,  51  New  Jersey  Law  191. 
People  V.  Ward,  107  California  236. 

III.    Acceptance  op  Office  and  Qualification. 

1.     Obligation  to  Accept.  131 

People  V.  Williams,  145  Illinois  573. 

2.  How  Acceptance  is  Manifested.  134 
State  V.  Supervisors,  '21  Wisconsin  282. 

Speed  V.  Detroit,  97  Michigan  198. 

CHAPTER   III. 

DE  FACTO  OFFICERS. 

I.    Intruders.  141 

State  V.  Taylor,  108  North  Carolina  196. 

II.    Who  Are  De  Facto  Officers  T  144 

State  V.  Carroll,  38  Connecticut  449. 
Oliver  v.  Mayor,  63  New  Jersey  Law  634. 
Nofire  V.  United  States,  164  United  States  657. 
McCfthon  V.  Commissioners,  8  Kansas  437. 
State  V.  Gardner,  54  Ohio  St.  24. 
Harvey  v.  Philbrick,  49  New  Jersey  Law  374. 


TABLE  OP  CONTENTS.  Vll 

PAGE 

III.    Powers  and  Rights.  167 

People  V.  Weber,  89  Illinois  347. 
Romero  v.  United  States,  24  Court  of  Claims  331. 
Dolan  V.  Mayor,  68  New  York  274. 
Nichols  vs  MacLean,  101  New  York  526. 
State  V.  Dierberger,  90  Missouri  369. 
Boone  County  v.  'Jones,  54  Iowa  699. 

CHAPTER   IV. 

QUALIFICATIONS   FOR   OFFICE. 

1.    Power  op  the  Legislature  to  Providb  Quaupications. 

1.    In  General.  184 

Bradley  v.  Clark,  133  California  196. 

2.    Property  and  Educational.  186 

State  V.  McAllister,  38  West  Virginia  485. 
Brown  v.  Russell,  166  Massachusetts  14. 
In  re  Wortman,  22  Abb.  New  Cases  (N.  Y.)  137. 

3.    Political.  199 

Attorney  General  v.  Common  Council,  58  Michigan  213. 
Rogers  v.  Common  Council,  123  New  York  173. 

II.    When  Quaupications  Must  be  Present.  208 

Smith  V.  Moore,  90  Indiana  294. 

III.      DiSQUALIPICATION.  215 

Attorney  General  v.  Marston,  66  New  Hampshire  485. 

People  V.  Green,  58  New  York  295. 

Attorney  General  v.  Common  Council,  112  Michigan  145. 

De  Turk  v.  Commonwealth,  129  Pa.  St.  151. 

Gray  v.  Seitz,  162  Indiana  1. 

CHAPTER  V. 
TERMINATION  OF  THE  OFFICIAL  RELATION. 

1.    Expiration  of  Term  233 

People  V.  Palmer,  154  New  York  133. 
People  V.  Palmer,  52  New  York  83. 
Kreidler  v.  State,  24  Ohio  St.  22. 
State  V.  Bulkeley,  61  Connecticut  287. 


Tiii  TABLE  OP  CONTENTS. 

PAOB 

II.    Resignation.  244 

Badger  v.  United  States,  93  United  States  599. 
State  V.  Ferguson,  31  New  Jersey  Law  107. 
Reiter  v.  State,  51  Ohio  State  74. 
Wardlaw  v.  Mayor,  137  New  York  194. 

Ill,    Removal  from  Office. 

1.    Power  of  Legislature.  253 

Attorney  General  v.  Jochim,  99  Michigan  358. 

2.    In  Absence  of  Legislative  Provision.  261 

State  V.  Chatburn,  63  Iowa  659. 
Ex  parte  Lehman,  60  Mississippi  967. 
State  V.  Savage,  89  Alabama  1. 

3,    Incident  to  Power  of  Appointment.  ^68 

Ex  parte  Hennen,  13  Peters  230. 

4.    Removal  for  Cause.     J  273 

In  the  matter  of  Guden,  171  New  York  529. 
State  V.  Kenelly,  75  Connecticut  704. 

5.    Power  of  Suspension.  281 

Gregory  v.  Mayor,  113  New  York  416. 
State  V.  Megaarden,  85  Minnesota  41. 

IV.    Impeachment.  287 

Trial  of  Andrew  Johnson  in  Senate  of  United  States  1868. 
Opinion  of  the  Justices,  167  Massachusetts  599. 
State  V.  Hillyer,  2  Kansas  17, 
In  re  Executive  Communication,  14  Florida  289. 
State  V.  O'Driscoll,  2  Treadway  (S.  C.)  713. 

.    CHAPTER   VI. 
COMPENSATION  OF  OFFICERS. 

I.  Not  Based  on  Contract.  305 
White  V,  Inhabitants  of  Levant,  78  Maine  568, 

County  of  Ijancaster  v.  Fulton,  128  Pa.  St.  48. 
Converse  v.  United  States,  21  Howard  (U.  S.)  463. 
United  States  v,  Saunders,  120  United  States  126. 
United  States  v.  Flanders,  112  United  States  88. 

II.  Rei.ation  to  Work  Done.  815 
Locke  V,  Central,  4  California  65. 


TABLE  OF  CONTENTS.  ix 

PAGE 

Fitzsimmons  v.  Brooklyn,  102  New  York  536. 
O'Leary  v.  Board,  93  New  York  1. 

III.    Change  of  Compensation.  322 

Kehn  v.  State,  93  New  York  291. 
United  States  v,  Langston,  118  United  States  389. 
Fiak  V.  Jefferson  Police  Jury,  116  United  States  131. 

IV.    Assignment  of  Compensation.  330 

Bliss  V.  Lawrence,  58  New  York  442. 
Buchanan  v.  Alexander,  4  Howard  (U.  S.)  20. 

V.    Pensions.  334 

Pennie  v.  Reis,  132  United  States  464. 
Commonwealth  v.  Walton,  182  Penn.  St.  373. 
In  the  Matter  of  Mahon,  171  New  York  263. 
State  V.  Rogers,  87  Minnesota  130. 

CHAPTER  VII. 

THE  EXERCISE  OF  OFFICIAL  AUTHORITY. 
1.    General  Prerequisites  of  Valid  Action. 

1.    Territorial  Jurisdiction.  349 

Page  V.  Staples,  13  Rhode  Island  306. 

2.    Disqualification  on  Account  of  Personal  Interest.      350 
Goodyear  v.  Brown,  155  Penn.  St.  514. 
Moses  V.  Julian,  45  New  Hampshire  52. 

3.    Mandatory  and  Discretionary  Duties.  359 

French  v.  Edwards,  13  Wallace  506. 
Supervisors  v.  United  States,  4  Wallace  435. 
Mullnix  V.  Mutual  Life  Insurance  Co.,  23  Colorado  71. 
State  V.  Mayor  of  Paterson,  34  New  Jersey  Law  163. 

4.    Majority  Necessary  for  Valid  Action.  368 

Rushville  Gas  Co.  v,  Rushville,  121  Indiana  206. 
McCortle  v.  Bates,  29  Ohio  State  419. 

II.    Powers  of  Oppicfrs. 
A.    The  Power  op  Ordinance. 

1.    Basis  of  Power.  373 

Morris  v.  Columbus,  102  Georgia  792. 
Evansville  v.  Miller,  146  Indiana  613. 


X  TABLE  OP  CONTENTS. 

PAOK 

2.    Control  of  Courts.  382 

Clinton  v.  Phillips,  58  Illinois  102. 
Matter  of  Ah  You,  88  California  99. 
Chicago  V.  Quimby,  38  Illinois  274. 

B.    Special  Acts  op  Individual  Appucation. 

1.      Exercise  of  Judicial  Powers.  387 

Langenberg  v.  Decker,  131  Indiana  471. 

Interstate  Commerce  Commission  v.  Brimson,  154  United  States 
447. 

2.    Notice  to  Persons  Affected.  399 

Stuart  V.  Pahner,  74  New  York  183. 
Chicago,  &c.,  Railway  v.  Minnesota,  134  United  States  418 
Health  Department  v.  Trinity  Church,  145  New  York  32. 

3.  Unrestrained  Discretion.  416 
Wilson  V.  Eureka  City,  173  United  States  32. 

'  Illinois  State  Board,  etc.,  v.  People,  123  Illinois  227. 
■'Tick  Wo  V.  Hopkins,  118  United  States  356. 

4.  Construction  of  Powers.  434 
People  V.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  104  New  York  58. 

5.     Conclusiveness  of  Administrative  Determinations.     438 
^  Hilton  V.  Merritt,  110  United  States  97. 
Bell  V.  Pierce,  51  New  York  12. 

Metropolitan  Board,  &c.,  v.  Heister,  37  New  York  661. 
Raymond  v.  Fish,  51  Connecticut  80. 
Mygatt  V.  Washburn,  15  New  York  316. 

C.    Enforcement  op  the  Law. 

1.    Judicial  Process.  465 

Barclay  v.  Commonwealth,  25  Pa.  St.  503. 
City  of  Salem  v.  Eastern  R.  R.  Co.,  98  Massachusetts  431. 
City  of  Taunton  v.  Taylor,  116  Massachusetts  254. 

2.     Summary  Administrative  Proceedings.  466 

Murray's  Lessee  v.  Hoboken,  &c.,  Co.,  18  How.  (U.  S.)  272. 
Commonwealth  v.  Byrne,  20  Gratton  165. 
Bergen  v.  Clarkson,  6  N.  J.  L.  428. 
Orlando  v.  Pragg,  31  Florida  111. 
Lawton  v.  Steele,  119  New  York  226. 
Lawton  v.  Steele,  152  United  States  133. 
Fields  V.  Stokely,  99  Pa.  St.  306. 


TABLE  OP  CONTENTS.  XI 


CHAPTER   VIII. 


LIABILITY  OP  GOVERNMENT  FOR  ACTS  OF  OFFICERS. 

PAGE 

I.    At  Common  Law.  491 

The  Siren,  7  Wallace  152. 

II.    By  Statute.  495 

Dooley  v.  United  States,  182  United  States  222. 
Lewis  V.  State,  96  New  York  71. 
The  Floyd  Acceptances,  7  Wallace  666. 

III.    As  A  Result  op  Suits  Against  Officers.         505 
United  State  v.  Lee,  106  United  States  196. 

IV.    Liability  op  State  to  Action  in  United  States  Courts.  513 
New  Hampshire  v.  Louisiana,  108  United  States  76. 

V.      Liabdjity  op     Local   Corporations.  617 

County  of  Lancaster  v.  Fulton,  128  Penn.  St.  48.  306 

Dolan  V.  Mayor,  68  New  York  274.  171 

Fitzsimmons  v.  Brooklyn,  102  New  York  536.                             317 

Gregory  v.  Mayor,  113  New  York  416.  281 

Koch  V.  Mayor,  152  New  York  72.  24 

O'Leary  v.  Board^  93  New  York  1.  319 

White  V.  Levant,  78  Maine  568.  305 

CHAPTER  IX. 

LIABILITY  OF  OFFICERS. 

I.    Criminaij  Liability.  618 

Commonwealth  v.  Coyle,  160  Pa.  St.  36. 

II.    Civil  Liability. 
A.    On  Contract. 
1.    Personal  Liability.  520 

Brown  v.  Bradlee,  156  Massachusetts  28. 
McCurdy  v.  Rogers,  21  Wisconsin  199. 

2.     Contracts  Relative  to  Offices.  524 

Robertson  v.  Robinson,  65  Alabama  610. 
Stout  V.  Ennis,  28  Kansas  706. 


XU  TABLE  OP  CONTENTS. 

PAGE 

B.    In  Tort. 

1.    For  Duties  Owed  Only  to  Public.  831 

South  V.  Maryland,  18  How.  (U.  S.)  396. 

2.    Liability  of  Officers  Not  Ministerial.  534 

Bradley  v.  Fisher,  13  Wall.  335. 
Spalding  v.  Vilas,  161  U.  S.  483. 
Jones  V.  Loving,  55  Mississippi  109. 
Coffin  V.  Coffin,  4  Massachusetts  1. 
Goodwin  v.  Guild,  94  Tennessee  486. 

3.    Liability  of  Ministerial  Officers.  547 

Tracy  v.  Swartwout,  10  Peters  80. 
Grider  v.  Tally,  77  Alabama  422. 
Erskine  v.  Hohnbaeh,  14  Wall,  613. 
Commonwealth  v.  Shortall,  206  Pa.  St.  165. 

4.    Liability  for  Acts  of  Subordinates,  562 

Robertson  v.  Sichel,  127  United  States  507. 
Robinson  v.  Rohr,  73  Wisconsin  436. 

5.    Liability  to  Third  Persons  on  Official  Bond.  569 

People  V.  Schuyler,  4  New  York  173. 

C.    Liability  of  Opficeks  to  Government.  578 

People  V.  Johr,  22  Michigan  461 
Stephens  v.  Crawford,  1  Georgia  574. 
Chicago  V.  Gage,  95  Illinois  593. 
United  States  v.  Thomas,  15  Wall.  337. 

CHAPTER   X. 

THE  MANDAMUS. 

I.    Character  op  Duty   Whose   Performance   Will  Be   En- 
forced. 603 
State  V.  Whitesides,  30  South  Carolina  579. 

II.    Ministerial  and  Discretionary  Duties.  605 

State  V.  Wilson,  123  Alabama  259. 
Ex  parte  Hum,  92  Alabama  102. 

III.    Acts  Impossible  of  Performance.  612 

County  Commissioners  v.  Jacksonville,  36  Florida  196. 
Wampler  v.  State,  148  Indiana  557. 


TABLE  OF  CONTENTS.  Xlll 

PAGE 

rV.    Demand  and  Refusal.  617 

State  V.  Railway  Co.,  19  Washington  518. 

V.  Effect  of  Change  in  Office.  619 
Murphy  v.  Utter,  186  United  States  95. 

VI.  Courts  Having  Jurisdiction.  622 
Kendall  v.  United  States,  12  Peters  524. 

CHAPTER   XI. 
THE  PROHIBITION. 
I.    Power  Subject  to  the  Writ.  629 

People  V.  Supervisors,  1  Hill  (N.  Y.)  195. 
Speed  V.  Common  Council,  98  Michigan  360. 

II.    Is  A  Preventive  Remedy.  632 

United  States  v.  Hoffman,  4  Wallace  158. 

Ill,    Corrects  Only  Excess  of  Jurisdiction.  634 

Appo  V.  People,  20  New  York  531. 

IV.    Discretion  of  Court  635 

People  V.  Westbrook,  89  New  York  152. 

CHAPTER  XII. 
THE  INJUNCTION. 
I.    An  Equitable  Not  a  Legal  Remedy.  638 

Dows  V.  Chicago,  11  Wallace  108. 
Sage  V.  Fifield,  68  Wisconsin  546. 

II.    Discretionary  Acts.  641 

Harrison  v.  New  Orleans,  33  Louisiana  Annual  222. 
Davis  V.  Mayor,  1  Duer  (N.  Y.)  451. 
Bristol  Door  &  Lumber  Co.  v.  Bristol,  97  Virginia  304. 

III.    Who  May  Apply.  646 

Crampton  v.  Zabriskie,  101  United  States  601 

CHAPTER  XIIL 
THE  CERTIORARI. 
I.    Character  of  Act  Reviewable.  649 

Davis  v.  County  Commissioners,  153  Massachusetts  218. 
People  V.  Board,  140  New  York  1, 


XIT  TABLE  OF  CONTENTS. 

PACK 

II.    Discretion  op  Court.  655 

People  V.  Police  Commissioners,  82  New  York  506. 

III.    What  Is  Reviewable?  656 

People  V.  French,  110  New  York  494. 

IV.    Courts  Having  Jurisdiction.  659 

Ex  parte  Vallandigham,  1  Wallace  243. 

CHAPTER    XIV. 

Quo  Warranto.  663 

People  V.  Londoner,  13  Colorado  303. 
State  V.  Humphries,  74  Texas  466. 

CHAPTER    XV. 
HABEAS  CORPUS. 
I.    Physical  Restraint.  670 

Wales  V.  Whitney,  114  United  States  564. 

II.    Judgments  of  Courts.  675 

Ex  parte  Watkins,  3  Peters  192. 

III.    Excess  op  Jurisdiction.  678 

Ex  parte  Reed,  100  United  States  13. 
Ex  parte  Siebold,  100  United  States  371. 
People  V.  Liscomb,  60  New  York  559. 

IV.    Committing  Magistrates.  687 

/«  re  Martin,  5  Blatchford  (C.  C.  R.)  303. 

V.    Courts  Having  Jurisdiction.  691 

Ex  parte  Barry,  2  How.  (U.  S.)  65. 
In  re  Neagle,  135  United  States  1. 
Ableman  v.  Booth,  21  How.  (U.  S.)  506. 


TABLE  OF  CASES  REPORTED 


[REFEBENCES     ABE     TO     PAGES.] 

Ableman  v.  Booth,  21  How.  (U.  S.)  506 694 

Ah  You,  In  re,  88  California  99;  25  Pac.  974;  22  Am.  St  Rep.  280; 

11  L.  R.  A.  408 883 

Appo  V.  People,  20  New  York  531 634 

Attorney  General  v.  Common  Council,  58  Michigan  213;  24  N.  W. 

Rep.  887;   55  Am.  Rep.  675 199 

V.  Common  Council,  78  Michigan  545;  44  N.  W.  Rep.  388;  18 

Am.  St  Rep.  458;   7  L.  R.  A.  99 33 

V.    Common   Council,   112   Michigan   145;    70   N.   W.   450;    37 

L.  R.  A.  211 219 

V.  Jochim,  99  Michigan  358;  58  N.  W.  Rep.  611;  41  Am.  St  Rep. 

606;  23  L.  R.  A.  699 255 

V.  Marston,  66  New  Hampshire  485;  22  Atl.  Rep.  560;  13  L.  R. 

A.  670   215 

Badger  v.  United  States,  93  U.  S.  599 244 

Barclay  v.  Commonwealth,  25  Pa.  St  503;  64  Am.  Dec.  714 455 

Barry,  Ex  parte,  2  Howard  (U.  S.)  65 691 

Bell  V.  Pierce,  51  New  York  12 442 

Bergen  v.  Clarkson,  6  New  Jersey  Law  428 476 

Bliss  V.  Lawrence,  58  New  York  442 ;  17  Am.  Rep.  273 330 

Boone  County  v.  Jones.  54  Iowa  699;  2  N.  W.  Rep.  987;  7  N.  W.  Rep. 

155;  37  Am.  Rep.  229 182 

Boyd  V.  Mills,  53  Kansas  594;  37  Pac.  Rep.  16;  42  Am.  St  Rep.  306; 

25  L.  R.  A.  486 56 

Bradley  v.  Clark,  133  California  196;  65  Pac.  Rep.  395 184 

Bradley  v.  Fisher,  13  Wallace  335 534 

Bristol  Door  &  Lumber  Co.  v.  Bristol,  97  Virginia  304;  33  S.  E.  Rep. 

588;  75  Am.  St  Rep.  783 644 

Brown  v.  Bradlee.  156  Massachusetts  28;   32  Am.  St  Rep.  430;  30 

N.  E.  Rep.  85;  15  L.  R.  A.  509 520 

Brown  v.  Russell,  166  Massachusetts  14;  43  N.  E.  Rep.  1005;  55  Am. 

St  Rep.  357;  32  L.  R.  A.  253 190 

Brown  v.  Turner,  70  North  Carolina  93 11 

Buchanan  v.  Alexander,  4  How.   (U.  S.)   20 332 

Butler  V.  Pennsylvania,  10  How.  (U.  S.)  402 5 

Chicago  V.  Gage,  95  Illinois  593;  35  Am.  Rep.  182 586 

Chicago  V.  Quimby,  38  Illinois  274 385 

Chicago,  &c..  Railway  Co.  v.  Minnesota,  134  United  States  418;   10 

S.  Ct  Rep.  462,  702 404 

XV 


Xfi  TABLE  OF  OASES  REPORTED. 

[BEFEBEKCES     ABE    TO     PAGES.] 

Clinton  V.  Phillips,  58  Illinois  102 ;  11  Am.  Rep.  62 882 

Coffin  V.  Coffin,  4  Massachusetts  1 ;  2  Am.  Dec.  189 640 

Commonwealth  v.  Byrne,  20  Oratt  (Va.)  165 471 

V.  Coyle,  160  Penn.  St.  36;  28  Atl.  Rep.  676;  40  Am.  St  Rep. 

708;  24  L.  R.  A.  652 518 

V.  Shortall,  206  Penn.  St  165;  55  Atl.  Rep.  952;  98  Am.  St  Rep. 

759    , 555 

▼.  Walton,  182  Penn.  St  373;  38  Atl.  Rep.  790;  61  Am.  St  Rep. 

712    339 

Converse  v.  United  States,  21  How.  (U.  S.)  463 308 

County  Com'rs  v.  Jacksonville,  36  Florida  196;  18  So.  Rep.  339 618 

Crampton  v.  Zabriskie,  101  United  States  601 $46 

Davis  v.  County  Com'rs,  153  Massachusetts  218;  26  N.  E.  Rep.  848. . .  649 

Davis  V.  Mayor,  1  Duer  (N.  Y.)  451 642 

De  Turk  v.  Commonwealth,  129  Penn.  St  151;  18  Atl.  Rep.  757;  15 

Am.  St  Rep.  705;  5  L.  R.  A.  853 226 

Dolan  v.  Mayor,  68  New  York  274;  23  Am.  Rep.  168 171 

Dooley  V.  United  States,  182  United  States  222;  21  S.  Ct  Rep.  762...  495 

Dows  V.  Chicago,  11  Wallace  (U.  S.)  108 638 

Erskine  v.  Hohnbach,  14  Wall.   (U.  S.)   613 663 

Evansville  v.  Miller,  146  Indiana  613;  46  N.  B.  Rep.  1064;  38  L.  R. 

A.  161    376 

Executive  Communication,  In  re,  14  Florida  289 299 

Fields  V.  Stokely,  99  Penn.  St  306 ;  44  Am.  Rep.  109 489 

Fisk  V.  Jefferson  Police  Jury,  116  United  States  131;  6  S.  Ct  Rep. 

329    827 

FItzsimmons  v.  Brooklyn,  102  New  York  636;  7  N.  E.  Rep.  787;  56 

Am.  Rep.  835 317 

Floyd  Acceptances,  The,  7  Wall.  (U.  S.)  666 601 

French  v.  Edwards,  13  Wall.  (U.  S.)  506 359 

Fritts  V.  Kuhl,  51  New  Jersey  Law  191;  17  Atl.  Rep.  102 121 

Ck>odyear  v.  Brown,  155  Penn.  St  614;  26  Atl.  Rep.  665;  35  Am.  St 

Rep.  903;  20  L.  R.  A.  838 860 

Goodwin  V.  Guild,  94  Tennessee  486;  29  S.  W.  Rep.  721;  45  Am.  St 

Rep.  743   645 

Gray  v.  Steitz,  162  Indiana  1;  69  N.  E.  Rep.  456 889 

Gregory  v.  Mayor,  113  New  York  416;  21  N.  E.  Rep.  119 881 

Grider  v.  Tally,  77  Alabama  422 549 

Guden,  In  re,  171  New  York  529;  64  N.  E.  Rep.  451 878 

Hadley  v.  Mayor,  33  New  York  603 ;  88  Am.  Dec  412 64 

Hall  v.  Wisconsin,  103  United  States  6 1 

Hanna  v.  Young,  84  Maryland  179;   35  Atl.  Rep.  674;   67  Am.  St 

Rep.  396;  34  L.  R.  A.  55 46 

Harrison  v.  New  Orleans,  33  La.  Ann.  222;  39  Am.  Rep.  272 641 

Harvey  v.  Philbrick,  49  New  Jersey  Law  374;  8  Atl.  Rep.  122 166 

Health  Department  v.  Trinity  Church,  146  New  York  32;  46  Am. 

St  Rep.  679;  39  N.  E.  Rep.  833 411 

Hennen,  Ex  parte,  13  Peters  230 268 

Hilton  V.  Merritt.  110  United  States  97;  3  8.  Ct  Rep.  648 488 


TABLE  OF  CASES  REPORTED.  XVll 
[BEFEBENCES     ABE     TO     PAGES.] 

Hum,  Ex  parte,  92  Alabama  102;  9  So.  Rep.  515;  25  Am.  St  Rep. 

23;  13  L.  R.  A.  120 610 

Illinois  State  Board  v.  People,  123  Illinois  227;  13  N.  E.  Rep.  201. .. .  420 
Indianapolis  Brewing  Co.  v.  Claypool,  149  Indiana  193;   48  N.  E. 

Rep.  228   21 

Interstate  Commerce  Commission  v.  Brimson,   154  United   States 

447;  14  S.  Ct  Rep.  1125 392 

Johnson,  Trial  of  Andrew,  Senate  of  U.  S.  1868 287 

Jones  V.  Loving,  55  Mississippi  109 ;  30  Am.  Rep.  508 539 

Kehn  v.  State,  93  New  York  291 322 

Kendall  v.  United  States,  12  Peters  524 622 

Kinneen  v.  Wells,  144  Massachusetts  479;  11  N.  E.  Rep.  916;  59  Am. 

Rep.  105   27 

Koch  V.  Mayor,  152  New  York  72;  46  N.  E.  Rep.  170 24 

Kreidler  v.  State,  24  Ohio  State  22 239 

Lancaster  County  v.  Fulton,  128  Penn.  St.  48;  18  Atl.  Rep.  384;  5  L. 

R.  A.  436 306 

Langenherg  v.  Decker,  131  Indiana  471;  31  N.  E.  Rep.  190;  16  L.  R. 

A.  108   387 

Lawton  v.  Steefe,  W.9  New  York  226;  23  N.  E.  Rep.  878;  16  Am.  St 

Rep.  810;  7  L.  R.  A.  134 479 

Lawton  v.  Steele.  152  U.  S.  133;  14  S.  Ct.  Rep.  499 485 

Lehman,  Ex  parte,  60  Mississippi  67 264 

Lewis  V.  Com'rs,  16  Kansas  102 ;  22  Am.  Rep.  275 65 

Lewis  V.  State,  96  New  York  71;  48  Am.  Rep.  607 499 

Locke  V.  Central,  4  Colo.  65;  34  Am.  Rep.  66 315 

Mahon,  In  re,  171  New  York,  263;  89  Am.  St  Rep.  810;  63  N.  E. 

Rep.  1107   342 

Marbury  v.  Madison,  1  Cranch  (  U.  S.)  187 98 

Martin,  In  re,  5  Blatchford  303 687 

Maynard  v.  Board,  84  Michigan  228;  47  N.  W.  Rep.  756;  11  L.  R.  A. 

332    39 

McCortle  v.  Bates,  29  Ohio  St  419;  23  Am.  Rep.  758 370 

McCurdy  v.  Rogers,  21  Wisconsin  199;  91  Am.  Dec.  468 522 

McCahon  v.  Com'rs,  8  Kansas  437 157 

Metropolitan  Board  v.  Heister,  37  New  York  661 445 

Morris  v.  Columbus,  102  Georgia  792;  30  S.  E.  Rep.  850;  66  Am.  St 

Rep.  243;  42  L.  R.  A.  175 373 

Moses  v.  Julian,  45  New  Hampshire  52;  84  Am.  Dec.  114 354 

Mulnix  V.  Mutual  Life  Ins.  Co.,  23  Colorado,  71;  46  Pac.  Rep,  123;  33 

L.  R.  A.  827 362 

Murphy  v.  Utter,  186  United  States  95;  22  S.  Ct  Rep.  776 619 

Murray's  Lessee  v.  Hoboken,  &c.,  Co.,  18  How.  (U.  S.)  272 466 

Mygatt  V.  Washburn,  15  New  York  316 453 

Neagle,  In  re,  135  United  States  1;  10  S.  Ct.  Rep.  658 692 

New  Hampshire  v.  Louisiana,  108  United  States  76 ;  2  S.  Ct  Rep.  176.  513 
Nichols  V.  MacLean,  101  New  York  526;  54  Am.  Rep.  730;  5  N.  E. 

Rep.  347    175 

Nofire  V.  United  States,  164  United  States  657;  17  S.  Ct  Rep.  212. . .  153 


f       XYlll  TABLE  OF  CASES  BEPOBTED. 

[references     are     to     PAQE8.] 

Opinion  of  the  Justices,  167  Massachusetts  599;  46  N.  E.  Rep.  118. . .  293 
Orlando  v.  Pragg,  31  Florida  111;  12  So.  Rep.  368;  34  Am.  St.  Rep. 

17;  19  L.  R.  A.  196 477 

O'Leary  v.  Board,  93  New  York  1;  45  Am.  Rep.  156 319 

Oliver  V.  The  Mayor,  63  New  Jersey  Law  634;  44  Atl.  Rep.  709;  76 

Am.  St  Rep.  228;  48  L.  R.  A.  412 149 

Olmstead  v.  Mayor,  42  New  York  Sup.  Ct.  Rep.  481 8 

Overshiner  v.  State,  156  Indiana  187;  59  N.  E.  Rep.  468;  83  Am.  St. 

Rep.  187   17 

Page  V.  Staples,  13  Rhode  Island  306 349 

Pennie  v.  Rels,  132  New  York  464 334 

People  V.  Board,  140  New  York  1;  35  N.  E.  Rep.  320;  37  Am.  St  Rep. 

522    650 

V.  Clute,  50  New  York  451;  10  Am.  Rep.  508 67 

V.  Democratic  Committee,  164  New  York  335;  58  N.  E.  Rep.  124.  78 

V.  French,  110  New  York  494;  18  N.  E.  Rep.  133. 656 

V.  Green,  58  New  York  295 216 

V.  Johr,  22  Michigan  461 578 

V.  Kuykendall,  161  Illinois  319;  43  N.  E.  Rep.  1114 59 

V.  Llscomb,  60  New  York  559;  19  Am.  Rep.  211 683 

V.  Londoner,  13  Colorado  303;  22  Pac.  Rep.  764 663 

V.  Mosher,  163  New  York  32;   57  N.  E.  Rep.  88;   79  Am.  St 

Rep.   552 84 

V.  Murray,  70  New  York  521 94 

V.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  104  New  York  58;  58  Am.  Rep. 

484;    9  N.  E.  Rep.  856 434 

V.  Palmer,  52  New  York  83 238 

V.  Palmer,  154  New  York  133;  47  N.  B.  1084 233 

T.  Police  Com'rs,  82  New  York  506 655 

V.  Schuyler,  4  New  York  173 669 

T,  Sup'rs,  1  Hill  (N.  Y.)  195 629 

V.  Ward,  107  California  236;  40  Pac.  Rep.  538 127 

V.  Weber,  89  Illinois  347 167 

V.  Westbrook,  89  New  York,  152 635 

V.  Williams,  145  Illinois  573;  33  N.  E.  Rep.  849;  36  Am.  St  Rep. 

514;  24  L.  R.  A.  492 131 

V.  Van  Cleve,  1  Michigan  362;  53  Am.  Dec.  69. .' 62 

Ransom  v.  Black,  54  New  Jersey  Law  446;  24  Atl.  Rep.  489 49 

Raymond  v.  Fish,  51  Connecticut  80;  50  Am.  Rep.  3 448 

Reed,  Ex  parte,  100  United  States  13 678 

Reiter  v.  State,  51  Ohio  St  74;  36  N.  E.  Rep.  943;  23  L.  R.  A.  681...  249 

Robertson  v.  Robinson,  65  Alabama  610;  39  Am.  Rep.  17 524 

Robertson  V.  Sichel,  127  United  States  507;    8  S.  Ct  Rep.  1286 662 

Robinson  v.  Rohr,  73  Wisconsin  436;  40  N.  W.  668;  9  Am.  St  Rep. 

810;  2  L.  R.  A.  366 '. 665 

Rogers  V.  Common  Council,  123  New  York  173;  25  N.  E.  Rep.  274 202 

Rogers  v.  Jacobs,  88  Kentucky  502;  11  S.  W.  Rep.  513 31 

Romero  v.  United  States,  24  Court  of  Claims  331 168 

Rushville  Gas  Co.  v.  Rushvllle.  121  Indiana  206;  23  N.  E.  Rep.  72; 

16  Am.  St  Rep.  388;  6  L.  R.  A.  315 368 


TABLE  OF  CASES  KEPOETED.  XlX 

[references   are   to   pages.] 

Sage  V.  Fifield,  68  Wisconsin  546 ;  32  N.  W.  Rep.  629 640 

Salem  v.  Eastern  Railroad  Co.,  98  Massachusetts  431;  96  Am.  Dec. 

650    456 

Siebold,  Ex  parte,  100  United  States  371 680 

Siren,  The,  7  Wall.  (U.  S.)  152 491 

Smith  V.  Moore,  90  Indiana  294 208 

South  V.  Maryland,  18  Howard  (U.  S.)  396 531 

Spalding  v.  Vilas,  161  United  States  483;  16  S.  Ct.  Rep.  631 538 

Speed  V.  Common  Council,  97  Michigan  198;  56  N.  W.  Rep.  570 135 

Speed  V.  Common  Council,  98  Michigan  360;  57  N.  W.  Rep.  406;  39 

Am.  St.  Rep.  555;  22  L.  R.  A.  842 630 

State  V.  Bulkeley,  61  Connecticut  289;  23  Atl.  Rep.  186;  14  L.  R.  A. 

657    241 

V.  Carroll,  38  Connecticut  449 ;  9  Am.  Rep.  409 144 

V.  Chatburn,  63  Iowa  659;  50  Am.  Rep.  760 261 

V.  Crawford,  28  Florida  441;  10  So.  Rep.  118;  14  L.  R.  A.  253..  113 

V.  Dierberger,  90  Missouri  369;  2  S.  W.  Rep.  286 178 

V.  Ferguson,  31  New  Jersey  Law  107 247 

V.  Ferguson,  33  New  Hampshire  424 378 

,v.  Gardner,  54  Ohio  St.  24;  42  N.  B.  Rep.  999;  31  L.  R.  A.  660..  159 

V.  Hillyer,  2  Kansas  17 295 

V.  Humphries,  74  Texas  466;  12  S.  W.  Rep.  99;  5  L.  R.  A.  217. .  667 

V.  Kennelly,  75  Connecticut  704 ;  55  Atl.  Rep.  555 277 

V.  McAllister,  38  West  Virginia  485;  12  S.  E.  Rep.  770 186 

V.  Megaarden,  85  Minnesota  41;  89  Am.  St.  Rep.  534 284 

V.  O'Driscoll,  2  Treadway   (S.  C.)   713 304 

V.  Paterson,  34  New  Jersey  Law  163 364 

V.  Peelle,  124  Indiana  515;  24  N.  E.  Rep.  440;  8  L.  R.  A.  228 90 

V.  Railway  Co.,  19  Washington  518;  53  Pac.  Rep.  719 617 

V.  Rogers,  87  Minnesota  130 344 

V.  Savage,  89  Alabama  1;  7  So.  Rep.  7 266 

V.  Supervisors,  21  Wisconsin  282 134 

V.  Taylor,  108  North  Carolina  196;  12  S.  E.  Rep.  1005;  12  L.  R. 

A.  202    141 

V.  Whitesides,  30  South  Carolina  579;  9  S.  E.  Rep.  661;  3  L.  R. 

A.  777    603 

V.  Wilson,  123  Alabama  259;  26  So.  Rep.  482;  45  L.  R,  A.  772. . .  605 
Stephenson  v.  Board,  118  Michigan  396;  76  N.  W.  Rep.  914;  42  L.  R. 

A.   214 72 

Stephens  v.  Crawford,  1  Georgia  574;  44  Am.  Dec.  680 582 

Stout  V.  Ennis,  28  Kansas  706 526 

Stuart  V.  Palmer,  74  New  York  183;  3,0  Am.  Rep.  289 399 

Supervisors  v.  United  States,  4  Wallace  (U.  S.)  435 360 

Taunton  v.  Taylor,  116  Massachusetts  254 460 

Tracy  v.  Swartwout,  10  Peters  80 547 

United  States  v.  Flanders,  112  United  States  88;  5  S.  Ct.  Rep.  67 313 

v.  Germaine,  99  United  States  508 14 

V.  Hoffman,  4  Wallace  158 632 

T.  Langston,  118  United  States  389;  6  S.  Ct.  Rep.  1185 324 


XX  TABLE  OF  OASES  REPORTED. 

[references     are     to     PAOES.l 

United  States  v.  Lee,  106  United  States  196;  1  S.  Ct  Rep.  240 606 

V.  Saunders,  120  United  States  126,  7  S.  Ct  Rep.  467 311 

V.  Thomas,  15  Wallace  337 593 

Vallandlgham,  Ex  parte,  1  Wallace  243 659 

Wortman,  In  re,  22  Abb.  New  Cases  137;  2  N.  Y.  Supp.  334 196 

Wales  V.  Whitney,  114  United  States  564;  5  S.  Ct  Rep.  1050 670 

Wampler  v.  State,  148  Indiana  557;  47  N.  E.  Rep.  1068;  38  I*  R. 

A.  829    614 

Wardlaw  v.  Mayor,  137  New  York  194;  83  N.  B.  Rep.  140 25S 

Watklns,  Ex  parte,  3  Peters  192 676 

White  V.  Inhabitants  of  Levant,  78  Maine  568;  7  Atl.  Rep.  539 305 

Wilson  V.  Eureka  City,  173  United  States  32;  19  S.  Ct  Rep.  317....  416 

Wortman,  In  re,  22  Abb.  New  Cases  137;  2  N.  Y.  Supp.  324 196 

Yick  Wo  V.  Hopkins,  118  United  States,  356;  6  &  Ct  Rep.  1064 42& 


THE  LAW  OF  OFFICERS 


CHAPTER   I. 

OFFICES  AND  OFFICERS. 

I.    What  is  an  Office? 

HALL  V.  WISCONSIN. 

Supreme  Court  of  the  United  States,  October,  1880. 
103  U.  S.  5. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Supreme  Court  of  Wisconsin. 

The  case  we  are  called  on  to  consider  is  thus  disclosed  in  the 
record : 

By  an  act  of  the  legislature,  ....  approved  March  3, 
1857,  James  Hall,  of  the  State  of  New  York,  the  plaintiff  in  error, 
and  Ezra  Carr,  and  Edward  Daniels,  of  Wisconsin,  were  appointed 
"commissioners"  to  make  the  survey.  Their  duties  were  specific- 
ally defined,  and  were  all  of  a  scientific  character. 

They  were  required  to  distribute  the  functions  of  their  work 
by  agreement  among  themselves,  and  to  employ  such  assistants  as 
a  majority  of  them  might  deem  necessary. 

The  governor  was  required  "to  make  a  written  contract  with 
each  commissioner"  for  the  performance  of  his  allotted  work,  and 
the  "compensation  therefor,  including  the  charge  of  each  commis- 
sioner;" and  it  was  declared  that  "such  contract  shall  expressly 
provide  that  the  compensation  to  such  commissioners  shall  be  at 
a  certain  rate  per  annum,  to  be  agreed  upon,  and  not  exceeding 
the  rate  of  two  thousand  dollars  per  annum,  and  that  payment  will 
be  made  only  for  such  part  of  the  year  as  such  commissioner  may 
be  actually  engaged  in  the  discharge  of  his  duty  as  such  commis- 
sioner. ' ' 

In  case  of  a  vacancy  occurring  in  the  commission,  the  governor 
was  empowered  to  fill  ft,  and  he  was  authorized  to  "remove  any 
member  for  incompetency  or  neglect  of  duty." 
1  1 


2  OFFICES  AND  OFFICERS. 

To  carry  out  the  provisions  of  the  act,  the  sum  of  $6,000  per 
annum  for  six  years  was  appropriated,  "to  be  paid  to  the  persons 
entitled  to  receive  the  same." 

By  an  act  of  the  legislature  of  April  2,  1860,  Hall  was  made 
the  principal  of  the  commission,  and  was  vested  with  the  general 
supervision  and  control  of  the  survey.  He  was  required  to  con- 
tract with  J.  D.  Whitney  and  with  Charles  Whittlesey  for  the 
completion  within  the  year  of  their  respective  surveys.  To  carry 
into  effect  these  provisions,  the  governor  was  authorized  to  draw 
such  portion  of  the  original  appropriation,  not  drawn  previous  to 
the  29th  of  May,  1858,  as  might  be  necessary  for  the  purpose ;  the 
residue  to  be  otherwise  used  as  directed. 

By  a  subsequent  act  of  March  21st,  1862,  both  the  acts  before 
mentioned  were  repealed  without  qualification. 

On  the  29th  of  May,  1858,  Hall  entered  into  a  contract  with  the 
governor,  whereby  it  was  stipulated  on  his  part  that  he  should 
perform  the  duties  therein  mentioned  touching  the  survey,  "this 
contract  to  continue  till  the  3d  day  of  March,  1863,  unless  the  said 
Hall  should  be  removed  for  incompetency  or  neglect  of  duty 
.  .  .  .  or  unless  a  vacancy  shall  occur  in  his  office  by  his  own. 
act  or  default." 

On  the  part  of  the  State  it  was  stipulated  "that  the  said  Hall 
shall  receive  for  his  compensation  and  expenses,  including  the 
expense  of  his  department  of  the  said  survey,  at  the  rate  of  $2,000 

per  annum Provided,  that  for  such  time  as  said  Hall 

or  his  assistants  shall  not  be  engaged  in  the  prosecution  of  his 
duties,  according  to  the  terms  of  said  act  and  of  this  contract, 
deduction  shall  be  made,  pro  rata,  from  the  sum  of  his  annual  com- 
pensation and  expenses." 

Hall  brought  this  action  upon  the  contract.  The  declaration 
avers  that  immediately  after  the  execution  of  the  contract  he  en- 
tered upon  the  performance  of  the  duties  thereby  enjoined  upon 
him,  and  continued  in  their  faithful  performance  until  the  time 
specified  in  the  contract  for  its  expiration,  to  wit,  the  3d  of  March, 
1863;  that  he  was  not  removed  by  the  governor  for  incompetency 
or  neglect,  nor  was  any  complaint  ever  made  by  the  governor 
against  him;  that  he  never  at  any  time  directly  or  indirectly,  as- 
sented to  the  repeal  of  the  acts  of  1857  and  1860 ;  and  that  there- 
after he  continued  in  the  performance  of  his  labors  the  same  as 
before,  and  that  for  the  year  ending  March  3d,  1863,  he  devoted 
his  whole  time  and  skill,  without  cessation,  to  the  work. 

He  avers  further,  that  for  his  services  performed  prior  to  March. 


HALL  V.  WISCONSIN.  d 

3d,  1862,  he  was  fully  paid,  but  that  for  the  year  ending  March  3d, 
1863,  he  had  received  nothing;  and  that  payment  was  demanded 
and  refused  on  the  3d  of  .December,  1863,  and  that  the  defendant 
is,  therefore,  justly  indebted  to  him  in  the  sum  of  $2,000,  with 
interest  from  the  date  last  mentioned. 

He  avers,  finally,  that  on  the  30th  of  January,  1875,  he  pre- 
sented his  claim  to  the  legislature  by  a  proper  memorial,  and  that 
its  allowance  was  refused.  , 

The  State  demurred  upon  two  grounds: — 

1.  That  the  complaint  did  not  show  facts  sufficient  to  consti- 
tute a  cause  of  action; 

In  support  of  the  first  objection,  it  was  insisted  that  the  em- 
ployment of  the  plaintiff  was  an  office,  and  that  the  legislature 
had  therefore  the  right  to  abolish  it  at  pleasure.  For  the  plain- 
tiff, it  was  maintained  that  there  was  a  contract,  and  that  the  re- 
pealing act  impaired  its  obligation  in  violation  of  the  contract 
clause  of  the  Constitution  of  the  United  States. 

The  court  sustained  the  demurrer  upon  the  first  ground,  and 
the  plaintiff  declining  to  amend,  dismissed  his  petition.  The  opin- 
ion of  the  court  is  limited  to  the  first  point,  and  ours  will  be  con- 
fined to  that  subject.  The  whole  case  resolves  itself  into  the  issue 
thus  raised  by  the  parties. 

No  question  is  made  as  to  the  suability  of  the  state.  The  pro- 
ceeding is  authorized  by  a  local  statute. 

The  statute  under  which  the  governor  acted  was  explicit,  that 
he  should  "make  a  written  contract  with  each  of  the  commission- 
ers aforesaid,  expressly  stipulating  and  setting  forth  the  nature 
and  extent  of  the  services  to  be  rendered  by  each,  and  the  compen- 
sation therefor"  and  that  **such  contract"  should  expressly  pro- 
vide that  the  compensation  of  each  commissioner  should  be  at  a 
certain  rate  per  annum,  to  be  agreed  upon,  and  not  to  exceed  $2,000 
per  annum  for  the  time  such  commissioner  may  be  actually  en- 
gaged. The  action  of  the  governor  conformed  to  this  view.  The 
instrument  executed  pursuant  to  the  statute  recites  that  it  is  an 
"agreement"  between  the  governor  as  one  party,  and  Hall,  Carr, 
and  Randall,  the  commissioners,  as  the  other.  They  severally 
agreed  to  do  what  the  statute  contemplated,  and  he  agreed  to  pay 
all  that  it  permitted. 

The  names  and  seals  of  the  parties  were  affixed  to  the  agree- 


4  OFFICES  AND  OFFICERS. 

ment,  and  its  execution  was  attested  by  two  subscribing  witnesses, 
as  in  other  cases  of  contract. 

In  a  sound  view  of  the  subject  it  seems  to  us  that  the  legal  posi- 
tion of  the  plaintiff  in  error  was  not  materially  different  from  that 
of  parties  who,  pursuant  to  law,  enter  into  stipulations  limited  in 
point  of  time,  with  a  State,  for  the  erection,  alteration  or  repair 
of  public  buildings,  or  to  supply  the  officers  or  employes  who  oc- 
cupy them  with  fuel,  light,  stationery,  and  other  things  necessary 
for  the  public  service.  The  same  reason  is  applicable  to  the  count- 
less employes  in  the  same  way,  under  the  national  government. 

It  would  be  a  novel  and  startling  doctrine  to  all  these  classes  of 
persons  that  the  government  might  discard  them  at  pleasure,  be- 
cause their  respective  employments  were  public  offices,  and  hence 
without  the  protection  of  contract  rights. 

It  is  not  to  be  supposed  that  the  plaintiff  in  error  would  have 
turned  his  back  upon  like  employment,  actual  or  potential,  else- 
where, and  have  stipulated  as  he  did  to  serve  the  state  of  Wis- 
consin for  the  period  named,  if  the  idea  had  been  present  to  his 
mind  that  the  state  had  the  reserved  power  to  break  the  relation 
between  them  whenever  it  might  choose  to  do  so.  Nor  is  there 
anything  tending  to  show  that  those  who  acted  in  behalf  of  the 
state  had  any  such  view  at  that  time.  All  the  facts  disclosed  point 
to  the  opposite  conclusion  as  to  both  parties. 

"When  a  state  descends  from  the  plane  of  its  sovereignty,  and 
contracts  with  private  persons,  it  is  regarded  pro  hac  vice  as  a 
private  person  itself,  and  is  bound  accordingly.  Davis  v.  Gray,  16 
Wall.  203. 

That  the  laws  under  which  the  governor  acted,  if  valid,  gave  him 
the  power  ta  do  all  he  did,  is  not  denied.  We  will  not,  therefore, 
dwell  upon  that  point.  The  validity  of  those  laws  is  too  clear  to 
admit  of  doubt.    It  would  be  a  waste  of  time  to  discuss  the  subject. 

We  are  of  the  opinion  that  the  Supreme  Court  of  the  State 
erred  in  the  judgment  given.  It  will,  therefore,  be  reversed,  and 
the  case  remanded  for  further  proceedings  in  conformity  with  this 

opinion. 

8o  ordered. 


BUTLER  V.  PENNSYLVANIA.  O 

BUTLER  V.  PENNSYLVANIA. 

Supreme  Court  of  the  United  States.    December,  1850. 
10  How.  402. 

Mr.  Justice  Daniel  delivered  the  opinion  of  the  court. 

By  the  authority  of  a  statute  of  Pennsylvania  of  the  28th  of 
January,  1836,  the  plaintiffs  in  error  were  by  the  Governor  of  the 
State  appointed  to  the  place  of  canal  commissioners;  and  by  the 
same  statute,  the  appointment  was  directed  to  be  made  annually 
en  the  first  day  of  February,  and  the  compensation  of  the  commis- 
sioners regulated  at  four  dollars  per  diem  each.  Under  this  law, 
the  plaintiffs  in  error,  in  virtue  of  an  appointment  on  the  first  of 
February,  1843,  accepted  and  took  upon  themselves  the  office  and 
duties  of  canal  commissioners.  By  a  subsequent  statute,  of  the 
18th  of  April,  1843,  the  appointment  of  canal  commissioners  was 
transferred  from  the  Governor  to  the  people  upoil  election  by  the 
latter  and  the  per  diem  allowance  to  be  made  to  all  the  commis- 
sioners was  by  this  law  reduced  from  four  to  three  dollars,  this 
reduction  to  take  effect  from  the  passage  of  the  act  of  April  18th, 
1843,  which  as  to  the  rest  of  its  provisions  went  into  operation  on 
the  second  Tuesday  of  January  following  its  passage,  that  is,  on 
the  second  Tuesday  of  January  in  the  year  1844.  Upon  a  settle- 
ment of  their  account  as  canal  commissioners,  made  before  the 
Auditor-General  of  the  State,  the  plaintiffs  in  error,  out  of  money 
of  the  state  then  in  their  hands,  claimed  the  right  to  retain  com- 
pensation for  their  services  at  the  rate  of  four  dollars  per  diem, 
for  the  full  term  of  twelve  months  from  the  date  of  their  appoint- 
ment by  the  governor;  whilst  for  the  state,  on  the  other  hand,  it 
was  refused  to  allow  that  rate  of  compensation  beyond  the  18th 
of  April,  1843,  the  period  of  time  at  which,  by  the  new  law,  the 
emoluments  of  appointment  were  changed.  In  consequence  of  this 
difference,  and  of  the  refusal  of  the  plaintiffs  in  error  to  pay  over 
the  balance  appearing  against  them  on  the  account  as  stated  by  the 
Auditor-General,  an  action  was  instituted  against  them  in  the  name 
of  the  State,  in  the  court  of  Common  Pleas  of  Dauphin  County, 
and  a  judgment  obtained  for  that  balance.  This  judgment  having 
been  carried  by  writ  of  error  before  the  Supreme  Court,  was  there 
affirmed,  and  from  that  tribunal,  as  the  highest  in  the  state,  this 
cause  is  brought  hither  for  revision. 

The  grounds  on  which  this  court  is  asked  to  interpose  between 


O  OFFICES  AND  OFFICERS. 

the  judgment  on  behalf  of  the  state  and  the  plaintiffs  in  error  are 
these.  That  the  appointment  of  these  plaintiffs  by  the  Governor 
of  Pennsylvania,  under  the  law  of  January  28th,  1836,  was  a  posi- 
tive obligation  or  contract  on  the  part  of  the  state  to  employ  the 
plaintiffs  for  the  entire  period  of  one  year,  at  the  stipulated  rate 
of  four  dollars  per  diem;  and  that  the  change  in  the  tenure  of 
office  and  in  the  rate  of  compensation  made  by  the  law  of  April 
18th,  1843  (within  the  space  of  one  year  from  the  1st  of  February, 
1843),  was  a  violation  of  this  contract,  and  therefore  an  infraction 
of  the  tenth  section  of  the  first  article  of  the  Constitution  of  the 
United  States.  In  order  to  determine  with  accuracy  whether  this 
case  is  within  the  just  scope  of  the  constitutional  provision  which 
has  thus  been  invoked,  it  is  proper  carefully  to  consider  the  char- 
acter and  relative  positions  of  the  parties  to  this  controversy,  and 
the  nature  and  objects  of  the  transaction  which  it  is  sought  to  draw 
within  the  influence  of  that  provision. 

.     .    .     .     The  contracts  designed  to  be  protected  by  the  tenth 
section  of  the  first  article  of  that  instrument  are  contracts  by  which 
perfect  rights,  certain  definite,  fixed  private  rights  of  property,  are 
vested.     These  are  clearly  distinguishable  from  measures  or  en- 
gagements adopted  or  undertaken  by  the  body  politic  or  state  gov- 
ernment for  the  benefit  of  all,  and  from  the  necessity  of  the  case, 
and  according  to  universal  understanding,  to  be  varied  or  discon- 
tinued as  the  public  shall  require.    The  selection  of  officers,  who 
are  nothing  more  than  agents  for  the  effectuating  of  public  pur- 
poses, is  matter  of  public  convenience  or  necessity,  and  so,  too,  are 
the  periods  for  the  appointment  of  such  agents;  but  neither  the 
one  nor  the  other  of  these  arrangements  can  constitute  any  obliga- 
tion to  continue  such  agents,  op  to  reappoint  them,  after  the  meas- 
ures which  brought  them  into  being  shall  have  been  found  useless, 
shall  have  been  fulfilled,  or  shall  have  been  abrogated  as  even 
detrimental  to  the  well-being  of  the  public.     The  promised  com- 
pensation for  services  actually  performed  and  accepted,  during 
the  continuance  of  the  particular  agency,  may  undoubtedly  be 
claimed,  both  upon  principle  of  compact  and  of  equity;  but  to 
insist  beyond  this  on  the  perpetuation  of  a  public  policy  either 
useless  or  detrimental,  and  upon  a  reward  for  acts  neither  desired 
nor  promised,  would  appear  to  be  neither  reconcilable  with  nat- 
ural justice  nor  common  sense.    The  establishment  of  such  a  prin- 
ciple would)  arrest  necessarily  everything  like  progress  or  improve- 
ment in  government;  or  if  changes  would  be  ventured  upon,  the 


BUTLER  V.  PENNSYLVANIA.  7 

government  would  have  to  become  one  great  pension  establishment 
on  which  to  quarter  a  host  of  sinecures.  It  would  especially  be 
difficult,  if  not  impracticable,  in  this  view,  ever  to  remodel  the 
organic  law  of  a  state,  as  constitutional  ordinances  must  be  of 
higher  order  and  more  immutable  than  common  legislative  enact- 
ments, and  there  could  not  exist  conflicting  constitutional  ordi- 
nances under  one  and  the  same  system.  It  follows,  then,  upon 
principle,  that,  in  every  perfect  or  competent  government,  there 
must  exist  a  general  power  to  enact  and  to  repeal  laws;  and  to 
create,  and  change  or  discontinue,  the  agents  designated  for  the 
execution  of  those  laws.  Such  a  power  is  indispensable  for  the 
preservation  of  the  body  politic,  and  for  the  safety  of  the  indi- 
viduals of  the  community.  It  is  true  that  this  power,  or  the  extent 
of  its  exercise,  may  be  controlled  by  the  higher  organic  law  or 
the  constitution  of  the  state,  as  is  the  case  in  some  instances  in 
the  state  constitutions,  and  is  exemplified  in  the  provision  of  the 
federal  constitution  relied  on  in  this  case  by  the  plaintiffs  in 
error,  and  in  some  other  clauses  of  the  same  instrument ;  but  where 
no  such  restriction  is  imposed,  the  power  must  rest  in  the  discre- 
tion of  the  government  alone.  The  constitution  of  Pennsylvania 
contains  no  limit  upon  the  discretion  of  the  legislature,  either  in 
the  augmentation  or  diminution  of  salaries,  with  the  exceptions  of 
those  of  Governor,  and  judges  of  the  supreme  court,  and  the  pres- 
idents of  the  several  courts  of  Common  Pleas.  The  salaries  of 
these  officers  cannot,  under  that  constitution,  be  diminished  dur- 
ing their  continuance  in  office.  Those  of  all  other  officers  in  the 
state  are  dependent  upon  legislative  discretion.  We  have  already 
shown,  that  the  appointment  to  and  the  tenure  of  an  office  created 
for  the  public  use,  and  the  regulation  of  the  salaries  affixed  to  such 
an  office,  do  not  fall  within  the  meaning  of  the  section  of  the  Con- 
stitution relied  on  by  the  plaintiffs  in  error;  do  not  come  within 
the  import  of  the  term  contracts,  or,  in  other  words,  the  vested, 
private  personal  rights  thereby  intended  to  be  protected. 

The  precise  question  before  us  appears  to  have  been  one  of 
familiar  practice  in  the  State  of  Pennsylvania,  so  familiar,  indeed, 
and  so  long  acquiesced  in,  as  to  render  its  agitation  at  this  day 
somewhat  a  subject  of  surprise;     .... 

.  .  .  .  We  consider  these  decisions  of  the  state  court  as  hav- 
ing correctly  expounded  the  law  of  the  question  involved  in  the 
case  before  us,  as  being  concurrent  with  the  doctrines  heretofore 


8  OFFICES  AND  OFFICERS. 

rilled  and  still  approved  by  this  court, — concurrent,  too,  with  the 
decisions  of  the  Supreme  Court  of  Pennsylvania  now  under  re- 
view, which  decision  we  hereby  adjudge  and  order  to  be  affirmed. 


OLMSTEAD  V.  MAYOR,  ETC.,  OF  NEW  YORK. 

Superior  Court  of  City  of  New  York.    June,  1877. 
42  Superior  Ct.  Bep.  481. 

This  case  came  up  on  plaintiff's  motion  that  this  court  direct 
a  judgment  to  be  entered  upon  a  verdict  rendered  in  favor  of  the 
plaintiff,  subject  to  the  opinion  of  the  general  term.  The  plain- 
tiff sued  to  recover  the  salary  alleged  to  be  due  him  as  landscape 
architect  of  the  Department  of  Public  Parks  from  May  31,  1876,  to 
July  31,  then  next,  inclusive. 

The  plaintiff  was  by  profession  a  landscape  architect,  and  had 
been  employed  many  years  in  that  capacity  by  the  department 
which  had  fixed  his  salary  at  the  rate  of  $6,000  per  annum,  and  he 
had  been  paid  at  that  rate  down  to  and  including  May  31,  1876. 

In  the  year  1876  (Laws  of  1876,  p.  196,  ch.  193),  the  legislature 
created  a  board  known  as  the  "Commissioners  of  the  State  Sur- 
vey," to  hold  office  for  one  year,  and  named  the  plaintiff  one  of 
the  commissioners. 

He  accepted  the  office  of  commissioner  and  took  the  oath  of 
office  May  31,  1876.  He  afterwards,  on  July  18,  1876,  resigned. 
During  the  time  he  held  the  office  of  commissioner  he,  without  in- 
terruption, performed  the  duties  and  rendered  the  services  de- 
volved upon  and  required  of  him  as  landscape  architect.  On  Au- 
gust 4,  1876,  the  Department  of  Parks  passed  the  resolution  re- 
ferred to  in  the  opinion,  whereby  it  was  resolved,  "that  an  allow- 
ance or  payment  be  made  to  him"  (the  plaintiff)  "for  the  services 
to  the  Department  from  May  31,  1876,  at  the  rate  of  $6,000." 

Speir,  J.  A  preamble  adopted  by  the  department  of  parks  on 
the  4th  of  August,  1876,  is  set  forth  in  the  complaint,  reciting  that 
the  plaintiff  had,  without  advice  as  to  the  effect  it  might  have 
on  his  position  as  landscape  architect,  accepted  the  office  of  com- 
missioner of  the  State  survey ;  that  some  doubt  had  been  expressed 
on  the  point,  and  that  he  had  resigned  the  office,  and  had  without 


OLMSTEAD  V.   MAYOR,  ETC.  9 

interruption  performed  the  services  on  which  he  was  employed,  and 
it  was  resolved  that  an  allowance  and  payment  be  made  to  him  for 
the  services  to  the  department,  from  the  31st  day  of  May,  1876,  at 
the  rate  of  $6,000. 

No  salary  or  compensation  was  attached  to  the  office  of  commis- 
sioner of  the  State  survey.  The  plaintiff  took  the  oath  of  office  on 
the  31st  of  May,  1876,  and  the  board  was  organized. 

The  defense  is  based  on  the  following  provision  of  section  114 
of  chapter  325  of  the  laws  of  1873:  "Any  person  holding  office, 
whether  by  election  or  appointment,  who  shall,  during  his  term 
of  office,  accept,  hold  or  retain  any  other  civil  office  of  honor, 
trust,  or  emolument,  under  the  government  of  the  United  States 
(except  commissioners  for  the  taking  of  bail,  or  register  of  any 
court)  or  of  the  State  (except  the  office  of  notary  public  or  com- 
missioner of  deeds,  or  officer  of  the  national  guard),  or  who  shall 
hold  or  accept  any  other  office  connected  with  the  government  of 
the  city  of  New  York,  or  who  shall  accept  a  seat  in  the  legislature, 
shall  be  deemed  thereby  to  have  vacated  every  office  held  by  him 
under  the  city  government.  No  person  shall  hold  two  city  or 
county  offices,  except  as  expressly  provided  in  this  act;  nor  shall 
any  officer  under  the  city  government  hold  or  retain  an  office  under 
the  county  government,  except  when  he  holds  such  office  ex-officio 
by  virtue  of  an  act  of  the  legislature;  and  in  such  case  he  shall 
draw  no  salary  for  such  ex-officio  office. ' ' 

Was  the  plaintiff,  a  landscape  architect  in  the  Department  of 
Public  Parks,  an  officer  within  the  prohibition  of  the  preceding 
section  ? 

An  office  has  been  defined  to  be  a  right  to  exercise  a  public  func- 
tion or  employment,  and  to  take  the  fees  and  emoluments  belong- 
ing to  it.  An  officet  is  one  who  is  lawfully  invested  with  an  office, 
Bacon's  Abridgment,  vol.  7,  Title  Office  and  Officer,  p.  279,  ed.  of 
1860 ;  Bouv.  Law.  Die.  The  idea  of  an  officer  clearly  embraces  the 
idea  of  tenure,  duration,  fees  or  emoluments,  and  powers,  as  well 
as  that  of  duty.  The  nature  of  the  power  and  the  control  over 
the  officer  appointed  does  not  at  all  depend  upon  the  source  from 
which  it  emanates.  The  execution  of  the  power,  and  the  control 
over  the  officer,  depends  upon  the  authority  of  law,  and  not  upon 
the  agent  who  is  to  administer  it.  The  tenure  of  ancient  common 
law  offices,  and  the  rules  and  principles  by  which  they  are  gov- 
erned, have  no  application  in  this  country.  In  England  the  tenure 
of  office  depends  in  a  great  measure  upon  ancient  usage.  Here 
there  is  no  ancient  usage  which  can  apply  to,  and  govern  the  tenure 


10  OFFICES  AND  OFFICERS. 

of  offices  created  by  the  constitution  and  laws.  In  such  a  case  the 
tenure  of  the  office  is  determined  by  the  meaning  of  the  statute. 
Every  office  under  the  constitution  implies  an  authority  to  exer- 
cise some  portion  of  the  sovereign  power  of  the  State,  either  in 
making,  executing  or  administering  the  laws.  In  the  section  of 
the  statute  there  is  no  ambiguity,  and  there  is  no  room  for  con- 
struction or  interpretation.  The  words  are  clear  and  explicit  * '  No 
person  shall  hold  two  city  or  county  offices,  except  as  provided  in 
this  act;  nor  shall  any  officer  under  the  city  government  hold,  or 
retain  an  office  under  the  county  government,  except  when  he  holds 
such  office  ex-officio,  by  virtue  of  an  act  of  the  legislature;  and  in 
such  case  he  shall  draw  no  salary  for  such  ex-officio  office."  The 
distinction  is  plainly  taken  between  a  person  acting  as  a  servant 
or  employe,  who  does  not  discharge  independent  duties,  but  acts 
by  direction  of  others,  and  an  officer  empowered  to  act  in  the  dis- 
charge of  a  duty,  or  trust,  under  obligations  imposed  by  the  sanc- 
tions and  restraints  of  legal  authority  in  official  life.  I  can  find 
nothing  in  all  the  sections  of  the  charter  which  does  not  strictly 
limit  the  prohibition  to  persons  included  in  the  foregoing  definition 
given  by  the  elementary  writers.  The  plaintiff  received  no  cer- 
tificate of  appointment — took  no  oath  for  the  faithful  performance 
of  duties,  and  exercised  no  powers  depending  directly  upon  the 
authority  of  law.  He  was  simply  the  servant  of  the  commissioners 
of  the  park,  and  responsible  only  to  them.  His  responsibility  was 
limited  to  them,  and  is  in  no  way  distinguishable  from  that  of  the 
carpenter  and  the  mason  who  are  employed  to  build  the  bridges 
or  erect  the  buildings  designed  by  the  architect.  The  nature  and 
dignity  of  the  duties  confided  to  the  employes  by  the  commissioners 
do  not  determine  the  character  of  the  position.  It  is  in  no  proper 
sense  official  according  to  any  sense  in  which  the  term  is  used  in 
the  statute  above  recited. 

The  justices  of  the  supreme  court  of  Maine,  1822,  gave  an  opin- 
ion as  to  whether  certain  duties  which  had  been  delegated  by 
agents  to  be  appointed  by  the  governor,  constituted  the  appointees 
officers.  The  case  is  reported  in  the  appendix  to  the  first  edition  of 
3  Greenleaf  App.  No.  2.  They  say:  "There  is  a  manifest  differ- 
ence between  an  office  and  an  employment  under  the  government. 
We  apprehend  that  the  term  'office*  implies  a  delegation  of  a  por- 
tion of  the  sovereign  power  to,  and  possession  of  it  by,  the  person 
filling  the  office,  and  the  exercise  of  such  power  within  legal  limits 
constitutes  the  correct  discharge  of  the  duties  of  such  office."  The 
question  was  directly  put  before  the  learned  judges  for  decision, 


BROWN  V.  TURNER.  11 

and  they  returned  a  sharply  defined  answer,  wholly  disconnected 
with  the  other  matter,  and  it  seems  to  me  to  be  conclusive.  The 
courts  in  this  state  are  in  accord  with  the  foregoing  opinion. 

The  plaintiff  must  have  judgment  for  the  amount  claimed  in  the 
complaint,  with  costs. 


BROWN  V.  TURNER. 


Supreme  Court  of  North  Carolina.    January,  1874. 
70  N.  C.93. 

Application  for  a  mandamus,  heard  before  Watts,  J.,  at  Cham- 
bers in  the  city  of  Raleigh,  on  the  20th  day  of  January,  1874. 

In  his  complaint  the  plaintiff  alleges  that  he  has  been  duly 
appointed  Public  Printer  by  his  Excellency,  the  Governor,  and 
asks  for  a  mandamus  directed  to  the  defendant,  Howerton,  the 
Secretary  of  State,  commanding  him  to  deliver  the  public  laws, 
etc.,  to  the  plaintiff,  and  also  praying  that  he  be  restrained  from 
delivering  the  same  to  the  defendant,  Turner.  Howerton  answers 
the  complaint,  raising  no  question  of  fact  or  law.  Turner  demurs 
to  the  complaint : 

1st.  Because  of  a  defect  of  parties  plaintiff,  for  that  the  Attor- 
ney General,  in  the  name  of  the  people  of  the  State,  should  have 
brought  the  action. 

2d.  Because  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  in  this,  that  the  Governor  of  the  State 
has  no  right  to  appoint  a  public  printer,  and  that  the  plaintiff 
has  never  beefl  duly  appointed  Public  Printer  or  contractor. 

3d.  That  mandamus  is  not  the  proper  remedy  for  the  case 
made  by  the  complaint. 

His  Honor,  at  the  hearing  overruled  the  demurrer  and  gave 
judgment  for  the  plaintiff;  from  which  judgment  defendants  ap- 
pealed. 

Bynum,  J.  To  enable  the  plaintiff  to  recover  he  must  maintain 
three  propositions: 

1.  That  what  he  clafms  is  a  public  office. 

2.  That  he  has  the  legal  title  to  it. 

3.  That  he  is  prosecuting  his  claim  by  the  right  form  of  action. 


12  OFFICES  AND  OFFICERS. 

1.     Is  it  an  office? 

Ch.  43,  Acts  of  1869-70,  enacts  "That  the  office  of  State  Printer 
be  and  the  same  is  hereby  abolished,  and  all  laws  and  parts  of  laws 
in  conflict  with  this  act  are  hereby  repealed. ' ' 

Ch.  180,  Acts  of  1871-72,  enacts  "That  the  Joint  Committee 
on  Printing  of  the  two  Houses  of  the  General  Assembly  are  di- 
rected and  instructed  to  make,  execute  and  deliver  a  contract  for 
the  public  printing,  on  the  part  of  the  State, ' '  at  the  rates  specified 
in  this  act. 

There  is  an  act  positively  abolishing  the  office  of  Public  Printer, 
eo  nomine,  which,  according  to  Hoke  v.  Henderson,  4  Dev.  1,  is 
constitutional  in  form  and  substance,  because  it  disturbs  no  vested 
right  or  term  of  an  incumbent 

But  it  is  said  that  an  office  cannot  be  abolished  by  indirection, 
leaving  all  its  duties  to  be  performed  by  a  person  called  a  "con- 
tractor" of  public  printing. 

There  is  no  magic  in  the  word  "office."  "When  the  legislature 
created  and  called  it  an  office,  it  was  an  office,  not  because  the 
peculiar  duties  of  the  place  constituted  it  such,  but  because  the 
creative  will  of  the  law-making  power  impressed  that  stamp  upon 
it ;  therefore,  when  that  stamp  was  effaced  by  the  repealing  act  of 
1869-70,  it  shrank  to  the  level  of  an  undefined  duty.  The  au- 
thority that  invested  these  duties  with  the  name  and  dignity  of  a 
public  office,  afterwards  divested  them  of  that  name  and  dignitj'. 

There  being  now  no  law  of  the  land  declaring  it  to  be  a  public 
office,  our  next  inquiry  is,  do  the  duties  of  the  Public  Printer  con- 
stitute it  an  office? 

The  place  is  really  sui  generis,  and  therefore  the  ordinary  cri- 
teria by  which  we  distinguish  and  classify  public  offices  cannot 
aid  us  to  a  conclusion  here.  It  occupies  that  neutral  gi'ound  where 
it  may  "shade  into"  a  legislative  or  executive  function,  without 
disturbing  the  harmony  of  either.  It  comes  within  the  definition 
of  a  public  office  because  its  duties  relate  to  the  public  and  are  pre- 
scribed by  public  law,  but  so  may  the  duties  of  a  contractor  or 
workman  upon  a  public  building.  It  seems  not  to  be  an  office, 
because  all  the  duties  of  Public  Printer  as  prescribed  by  law  are 
mechanical  only,  as  much  so  as  those  of  a  carpenter  or  brick- 
mason,  calling  for  neither  judgment  or  discretion,  in  a  legal  sense, 
and  which  may  be  performed  by  employes,  men,  women  and  chil- 
dren, in  or  out  of  the  State,  and  on  his  death  every  unfinished  duty 
of  the  printer  can  and  must  be,  under  existing  law,  completed  by 


BROWN  V.  TURNER.  13 

his  personal  representative.  If  it  is  an  office,  there  is  no  law  pre- 
scribing the  term  or  duration  of  it,  and  it  may  be  held  for  life  as 
well  as  a  term  of  years,  which  puts  it  out  of  harmony  with  the 
whole  genius  and  spirit  of  our  political  institutions,  a  conclusion 
which  can  be  forced  upon  us,  only  on  the  most  evident  necessity. 

Assuming,  as  most  favorable  to  the  plaintiff,  that  this  anomalous 
collection  of  duties,  has  vibrated  upon  the  dividing  line  between 
two  departments,  a  closer  view  will  show  that  it  has  finally  as- 
sumed a  state  of  rest,  upon  the  legislative  side  of  the  line.  The 
office  of  State  Printer,  as  such,  was  abolished  in  1870.  From  that 
time  to  this,  each  political  party,  when  it  gained  the  ascendency 
in  the  legislature,  claimed  and  exercised  the  exclusive  control  over 
the  public  printing  by  their  own  election  of,  or  contract  with,  the 
printer.  In  1873,  the  question  was  raised  in  a  direct  proceeding 
for  that  purpose,  before  Judge  Moore,  and  it  was  then  decided  by 
him,  in  a  well  considered  opinion,  to  be  not  an  office,  and  that  judg- 
ment was  acquiesced  in  by  the  contestant  and  all  the  branches  of 
the  government.  It  would  seem,  then,  that  this  action  and  acqui- 
escence of  all  the  departments  of  the  government  had  fixed  the 
true  position  of  this  place,  in  a  manner  not  to  be  shaken.  There 
is  nothing  in  the  nature  of  the  duties  to  be  performed  to  excite  the 
jealousy  of  the  other  departments,  or  to  disturb  the  equilibrium 
of  either  one  of  the  three  co-ordinate  divisions  of  the  supreme 
authority  of  the  State.  While  it  is  true  that  *  *  the  executive,  legis- 
lative and  supreme  judicial  powers  of  the  government  ought  to  be 
forever  separate  and  distinct,"  it  is  also  true  that  the  science  of 
government  is  a  practical  one;  therefore,  while  each  should  firmly 
maintain  the  essential  powers  belonging  to  it,  it  cannot  be  forgot- 
ten that  the  three  co-ordinate  parts  constitute  one  brotherhood, 
whose  common  trust  requires  a  mutual  toleration  of  the  occupancy 
of  what  seems  to  be  a  ''common  because  of  vicinage,"  bordering 
the  domains  of  each. 

It  would  seem  as  natural  for  the  department  which  enacts  the 
laws  to  control  the  publication  of  its  labor,  as  for  an  author  to 
secure  a  copyright  of  his  work,  and  to  control  its  publication. 
Printing  and  publishing  are  a  necessary  part  of  the  enactment  of 
laws  so  essential  that  laws  would  be  incomplete  and  valueless  with- 
out being  thus  made  known  to  those  who  are  bound  to  observe 
them. 

We  are  not,  therefore,  disposed  to  go  into  a  more  curious  and 
critical  inquiry  upon  this  question,  where  no  great  principle  is  in- 
volved and  where  such  inquiries  are  more  calculated  to  confuse 


14  OFFICES  AND  OFFICERS. 

than  to  answer  any  useful  purpose.    We  hold  that  the  legislature 
has  the  right  to  let  out  the  public  printing  by  contract. 

An  office  is  based  on  a  law,  i.  e.,  the  constitution,  a  statute  or  an  ordi- 
nance. See  Bradford  v.  Justices,  33  Ga.  336.  The  nature  of  the 
duties  is  not  a  criterion.  Thus  a  mere  clerk  may  be  an  officer. 
Vaughn  v.  English,  8  Cal.  39.  Salary  or  other  emolument  is  not  a  cri- 
terion.    State  V.   Stanley,  66   N.  C.  59. 


UNITED  STATES  V.  GERMAINE. 

Supreme  Court  of  the  United  States.    October,  1873. 
99  U.S.  508. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 
The  defendant  was  appointed  by  the  Commissioner  of  Pensions 
to  act  as  surgeon,  under  the  act  of  March  3,  1873,    .... 

He  was  indicted  in  the  District  of  Maine  for  extortion  in  taking 
fees  from  pensioners  to  which  he  was  not  entitled.  The  law  under 
which  he  was  indicted  ia  thus  set  forth  in  sect  12  of  the  act  of 
1825  (4  Stat.  118)  :— 

"Every  officer  of  the  United  States  who  is  guilty  of  extortion 
under  color  of  his  office  shall  be  punished  by  a  fine  of  not  more 
than  $500,  or  by  imprisonment  not  more  than  one  year,  according 
to  the  aggravation  of  his  offence.'* 

The  indictment  being  remitted  into  the  Circuit  Court,  the 
judges  of  that  court"  have  certified  a  division  of  opinion  upon  the 
questions  whether  such  appointment  made  defendant  an  officer 
of  the  United  States  within  the  meaning  of  the  above  act,  and 
whether  upon  demurrer  to  the  indictment  judgment  should  be 
rendered  for  the  United  States  or  for  defendant. 

The  counsel  for  defendant  insists  that  art.  2,  sect.  2  of  the  Con- 
stitution prescribing  how  officers  of  the  United  States  shall  be 
appointed,  is  decisive  of  the  case  before  us.  It  declares  that  "the 
President  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  shall  appoint,  ambassadors,  other  public  min- 
isters and  consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not  herein 
otherwise  provided  for  and  which  shall  be  established  by  law.  But 


UNITED  STATES  V.  GERMAINE.  15 

the  Congress  may,  by  law,  vest  the  appointment  of  such  inferior 
officers  as  they  may  think  proper,  in  the  President  alone,  in  the 
courts  of  law,  or  inihe  heads  of  departments." 

The  argument  is  that  provision  is  here  made  for  the  appointment 
of  all  officers  of  the  United  States,  and  that  defendant,  not  being 
appointed  in  either  of  the  modes  here  mentioned,  is  not  an  ofjicer 
though  he  may  be  an  agent  or  employe  working  for  the  government 
and  paid  by  it,  as  nine-tenths  of  the  persons  rendering  services 
to  the  government  undoubtedly  are,  without  thereby  becoming  its 
officers. 

The  Constitution  for  purposes  of  appointment  very  clearly  di- 
vides all  its  officers  into  two  classes.  The  primary  class  requires 
a  nomination  by  the  President  and  confirmation  by  the  Senate. 
But  foreseeing  that  when  offices  became  numerous,  and  sudden  re- 
movals necessary,  this  mode  might  be  inconvenient,  it  was  provided 
that,  in  regard  to  officers  inferior  to  those  specially  mentioned,  Con- 
gress might  by  law  vest  their  appointment  in  the  President  alone, 
in  the  courts  of  law,  or  in  the  heads  of  departments.  That  all 
persons  who  can  be  said  to  hold  an  office  under  the  government 
about  to  be  established  under  the  Constitution  were  intended  to 
be  included  within  one  or  the  other  of  these  modes  of  appointment 
there  can  be  but  little  doubt.  This  Constitution  is  the  supreme  law 
of  the  land,  and  no  act  of  Congress  is  of  any  validity  which  does 
not  rest  on  authority  conferred  b^.,that  instrument.  It  is,  there- 
fore, not  to  be  supposed  that  Congress,  when  enacting  a  criminal 
law  for  the  punishment  of  officers  of  the  United  States,  intended 
to  punish  anyone  not  appointed  in  one  of  those  modes.  If  the 
punishment  were  designed  for  others  than  officers  as  defined  by 
the  Constitution,  words  to  that  effect  would  be  used,  as  servant, 
agent,  person  in  the  service  or  employment  of  the  government; 
and  this  has  been  done  where  it  was  so  intended,  as  in  the  six- 
teenth section  of  the  act  of  1846,  concerning  embezzlement,  by 
which  any  officer  or  agent  of  the  United  States,  and  all  persons 
participating  in  the  act,  are  made  liable.    9  Stat.  59. 

As  defendant  here  was  not  appointed  by  the  President  or  by  a 
court  of  law,  it  remains  to  inquire  if  the  Commissioner  of  Pensions 
by  whom  he  was  appointed,  is  the  head  of  a  department,  within 
the  meaning  of  the  Constitution,  as  is  argued  by  the  counsel  for 
plaintiffs. 

That  instrument  was  intended  to  inaugurate  a  new  system  of 
government,  and  the  departments  to  which  it  referred  were  not 
then  in  existence.    The  clause  we  have  cited  is  to  be  found  in  the 


16  OFFICES  AND  OFFICERS. 

article  relating  to  the  executive,  and  the  word  as  there  used  has 
reference  to  the  subdivision  of  the  power  of  the  executive  into  de- 
partments, for  the  more  convenient  exercise  of  that  power.  One 
of  the  definitions  of  the  words  given  by  Worcester  is,  "a  part  or 
division  of  the  executive  government,  as  the  Department  of  State, 
or  of  the  Treasury."  Congress  recognized  this  in  the  act  creating 
these  subdivisions  of  the  executive  branch  by  giving  to  each  of 
them  the  name  of  a  department.  Here  we  have  the  Secretary  of 
State,  who  is  by  law  the  head  of  the  Department  of  State,  the 
Departments  of  War,  Interior,  Treasury,  etc.  And  by  one  of  the 
latest  of  these  statutes  reorganizing  the  Attorney  General's  oflBce 
and  placing  it  on  the  basis  of  the  others,  it  is  called  the  Depart- 
ment of  Justice.  The  association  of  the  words  "heads  of  depart- 
ments" with  the  President  and  courts  of  law  strongly  implies  that 
something  different  is  meant  from  the  inferior  commissioners  and 
bureau  officers,  who  are  themselves  the  mere  aids  and  subordinates 
of  the  heads  of  the  departments.  Such,  also,  has  been  the  practice, 
for  it  is  very  well  understood  that  the  appointments  of  the  thou- 
sands of  clerks  in  the  Departments  of  Treasury,  Interior,  and  the 
others,  are  made  by  the  heads  of  those  departments,  and  not  by 
the  heads  of  the  bureaus  in  those  departments. 

So  in  this  same  section  of  the  Constitution  it  is  said  that  the 
President  may  require  the  opinion  in  writing  of  the  principal  offi- 
cer in  each  of  the  executive  departments,  relating  to  the  duties  of 
their  respective  offices. 

The  word  "department,"  in  both  these  instances,  clearly  means 
the  same  thing,  and  the  principal  officer  in  the  one  case  is  the 
equivalent  of  the  head  of  department  in  the  other. 

While  it  has  been  the  custom  of  the  President  to  require  these 
opinions  from  the  Secretaries  of  State,  the  Treasury,  of  War,  Nav>-, 
etc.,  and  his  consultation  with  them  as  members  of  his  cabinet 
has  been  habitual,  we  are  not  aware  of  any  instance  in  which  such 
written  opinion  has  been  officially  required  of  the  head  of  any  of 
the  bureaus,  or  of  any  commissioner  or  auditor  in  these  depart- 
ments. 

United  States  v.  Bartwell,  6  Wall.  385,  is  not,  as  supposed,  in 
conflict  with  these  views.  It  is  clearly  stated  and  relied  on  in  the 
opinion  that  Hartwell's  appointment  was  approved  by  the  Assist- 
ant Secretary  of  the  Treasury  as  acting  head  of  that  department, 
and  he  was,  therefore,  an  officer  of  the  United  States. 

If  we  look  to  the  nature  of  defendant's  employment,  we  think 
it  equally  clear  that  he  is  not  an  officer 


OVERSHINER  V.  THE  STATE.  17 

.  .  .  He  is  but  an  agent  of  the  Commissioner,  appointed  by 
him,  and  removable  T)y  him  at  his  pleasure,  to  procure  information 
needed  to  aid  in  the  performance  of  his  own  official  duties.  He 
may  appoint  one  or  a  dozen  persons  to  do  the  same  thing.  The 
compensation  may  amount  to  five  dollars  or  five  hundred  dollars 
per  annum.  There  is  no  penalty  for  his  absence  from  duty  or  re- 
fusal to  perform,  except  his  loss  of  the  fee  in  the  given  case.  If 
Congress  had  passed  a  law  requiring  the  commissioner  to  appoint 
a  man  to  furnish  each  agency  with  fuel  at  a  price  per  ton  fixed 
by  law  high  enough  to  secure  the  delivery  of  the  coal,  he  would 
have  as  much  claim  to  be  an  officer  of  the  United  States  as  the 
surgeons  appointed  under  this  statute. 

We  answer  that  the  defendant  is  not  an  officer  of  the  United 
States  and  that  judgment  on  the  demurrer  must  be  entered  in  his 
favor.    Let  it  be  so  certified  to  the  Circuit  Court. 

The  wording  of  particular  statutes  has  an  important  influence  on 
the  determination  whether  for  the  purpose  of  the  statutes  a  particular 
position  is  an  office  or  not.  Compare  United  States  v.  Mouat,  124  IT,  S. 
303  and  United  States  v,  Hendee,  Ibid.  309,  which  hold  that  the  same 
position  is  an  office  for  one  purpose  but  not  for  another. 


II.    Legislative  Control  of  Offices.* 

OVERSHINER  V.  THE  STATE. 

Supreme'  Court  of  Indiana,  November,  1900. 
156  hid.  187. 

Hadley,  J.  Appellant  was  convicted  of  practicing  dentistry 
without  a  license,  or  certificate  of  registration,  in  violation  of  the 
provisions  of  the  act  of  1899  approved  March  6,  1899  (Acts  1899, 
p.  479).  The  section  involved  is  in  these  words:  "Section  2.  A 
board  of  examiners  consisting  of  five  reputable  practicing  den- 
tists shall  be  appointed  on  or  before  the  last  Tuesday  of  June,  1899, 

♦The  legislature  may  in  the  absence  of  constitutional  restriction 
establish  any  office  and  may  delegate  its  powers  to  establish  offices  to  a 
local  corporation.  Blue  v.  Beach,  155  Ind.  121.  Every  office  must  originate 
in  a  law.    United  States  v.  Maurice,  2  Brock.  (U.  S.)  96. 

2 


18  OFFICES  AND  OFFICERS. 

and  biennially  thereafter,  one  by  the  governor,  one  by  the  state 
board  of  health,  and  three  by  the  Indiana  state  dental  associa- 
tion, said  board  to  serve  for  the  term  of  two  years  from  the  date 
of  such  appointment.  "When  convened  said  board  shall  examine  all 
applications,  issue  certificates  thereon,  and  also  may  examine  all 
applicants  for  certificates  of  qualification  and  issue  such  certificates 
to  all  such  applicants  as  shall  pass  a  satisfactory  examination." 
Appellant  assails  the  judgment  upon  the  ground  that  the  statute 
upon  which  it  rests  is  violative  of  section  1,  article  3;  section  1, 
article  5 ;  section  18,  article  5,  and  section  3,  article  6  of  the  state 
constitution  and  the  fourteenth  amendment  of  the  federal  Consti- 
tution. Appellant  admits  that  he  practiced  dentistry  without  the 
license  required  by  the  statute  under  which  he  is  prosecuted  and 
that  the  judgment  is  right  if  that  statute  is  constitutional. 

It  is  here  asserted  that  the  statute  is  bad  for 

being  in  conflict  with  the  various  provisions  of  the  Constitution 
above  set  out,  the  contention  being  that  the  appointment  by  the 
state  dental  association  of  three  members  of  the  board  of  exam- 
iners was  void  for  want  of  authority  in  the  legislature  to  confer  the 
power  of  appointment  on  a  private  corporation,  or  individual  out- 
side the  executive  department. 

The  constitution  is  silent  upon  the  subject  of  general  appoint- 
ments to  office.  It  is  provided  by  section  1,  article  5,  that  "the 
executive  powers  of  the  state  shall  be  vested  in  a  governor"  and 
by  section  18,  article  5,  "when,  at  any  time,  a  vacancy  shall  have 
occurred  in  any  other  state  office,  [except  appointment  vested  in 
the  general  assembly]  or  in  the  office  of  judge  of  any  court,  the 
governor  shall  fill  such  vacancy  by  appointment,  which  shall  ex- 
pire when  a  successor  shall  have  been  elected  and  qualified"  and 
by  section  1,  article  15  that,  "All  officers  whose  appointments  are 
not  otherwise  provided  for  in  this  constitution  shall  be  chosen  in 
fiuch  manner  as  now  is,  or  hereafter  may  be,  prescribed  by  law. '  * 

Three  things  are  clearly  apparent  from  these  provisions:  (1) 
The  power  of  appointment  to  some  offices  is  committed  to  the  gen- 
eral assembly;  (2)  the  power  to  make  temporary  appointments  to 
fill  vacancies  in  any  state  office,  or  in  the  office  of  judge,  until 
such  officer  can  be  regularly  chosen  as  provided  by  law,  and  thus, 
to  avoid  a  suspension  of  the  functions  of  such  office,  is  conferred 
upon  the  governor,  and  (3)  all  other  officers  whose  appointments 
are  not  specially  provided  for  in  this  constitution  shall  be  chosen 
in  such  manner  as  the  legislature  may  deem  expedient.    It  cannot 


OVERSHINEB  V.  THE  STATE.  19 

be  contended  that  the  appointment  to  the  oflSce  of  state  dental  ex- 
aminer is  fixed  by  the  constitution,  for  no  such  office  was  in  exis- 
tence when  the  constitution  was  adopted.  The  appointments  to 
that  office,  therefore,  come  within  the  purview  of  section  1,  article 
15,  and  shall  be  made  in  such  manner  as  may  be  hereafter  pre- 
scribed by  law.  The  manner  prescribed  by  law  is  that  the  state 
board  of  dental  examiners  shall  consist  of  five  members,  one  to  be 
appointed  by  the  governor,  one  by  the  board  of  health,  and  three 
by  the  state  dental  association. 

It  is  claimed  that  the  statute  must  fail  for  the  reason  that  the 
legislature  has  no  constitutional  warrant  for  bestowing  the  police 
power  upon  a  private  corporation  to  be  by  it  exercised  upon  the 
citizens  of  the  state.  "We  perceive  no  reason  why  a  corporation, 
such  as  the  one  complained  of,  may  not  prove  itself  a  repository 
of  power,  as  safe  and  salutary  as  an  individual.  The  corporation 
is  composed  of  practicing  dentists,  organized  for  the  promotion 
of  scientific  knowledge  and  skill  in  the  practice  of  the  profession  of 
dentistry,  and  which  association  thus  stands  in  an  intimate  and 
well  informed  relation  to  the  subject,  and  possessed  of  a  peculiar 
interest  in  the  successful  administration  of  the  law.  It  is  difficult 
to  conceive  of  an  appointing  power  with  higher  qualifications,  or 
likely  to  be  swayed  by  more  laudable  motives,  and  that  it  is  an  or- 
ganization of  persons  mutually  interested  in  the  enforcement  and 
proper  administration  of  the  law  surely  furnishes  no  reason  for 
its  condemnation. 

In  the  case  known  as  the  Slaughter  House  Cases,  16  Wall.  36, 
the  legislature  of  Louisiana  had  granted  a  corporation  the  ex- 
clusive right  for  twenty-five  years  to  maintain  slaughter-houses, 
landings  for  cattle,  and  cattle  yards,  within  certain  parishes  of  the 
state,  including  the  city  of  New  Orleans,  requiring  all  animals 
offered  for  sale  or  slaughtered  to  be  brought  to  the  yards  of  the 
corporation,  authorizing  the  corporation  to  charge  fees,  and  pro- 
hibiting all  other  persons  from  maintaining  such  places  within  said 
territory.  In  holding  that  the  legislature  had  constitutional  au- 
thority within  its  police  powers  to  confer  these  public  duties  upon 
the  corporation,  the  court,  by  Justice  Miller,  uses  this  language. 
"  ....  If  this  statute  had  imposed  on  the  city  of  New  Or- 
leans precisely  the  same  duties  accompanied  by  the  same  privileges, 
which  it  has  on  the  corporation  it  created  it  is  believed  that  no 
question  would  have  been  raised  as  to  its  constitutionality.  In 
that  case  the  effect  on  the  butchers  in  pursuit  of  their  occupation 


20  OFFICES  AND  OPFICEES. 

and  on  the  public  would  have  been  the  same  as  it  is  now.  Why 
cannot  the  legislature  confer  the  same  powers  on  another  corpora- 
tion, created  for  a  lawful  and  useful  public  object,  that  it  can  on 
the  municipal  corporation  already  existing?  That  wherever  the 
legislature  has  the  right  to  accomplish  a  certain  result,  and  that 
result  is  best  attained  by  means  of  a  corporation,  it  has  the  right 
to  create  such  a  corporation,  and  to  endow  it  with  the  powers  nec- 
essary to  effect  the  desired  lawful  purpose,  seems  hardly  to  admit  of 
debate."  See,  also,  Louisville  Gas  Co.  v.  Citizens  Gas  Co.,  115  U.  S. 
683,  6  Sup.  Ct.  265,  29  L.  Ed.  510;  Commonwealth  v.  Vrooman, 
164  Pa.  St.  306,  30  Atl.  217,  25  L.  R.  A.  250. 

For  many  years  state  officers,  or  officers  performing  state  func- 
tions, have  been  chosen  by  private  corporations  under  legislative 
authority,  without  question.  Some  of  these  are,  three  members  of 
the  board  of  trustees  of  Purdue  University,  two  by  the  state  board 
of  agriculture,  and  one  by  the  state  board  of  horticulture  (Acts 
1875,  p.  120,  section  6176  Burns  1894) ;  grain  inspector  by  the 
board  of  trade  or  other  commercial  bodies  of  the  county  (Acts 
1875,  p.  172,  8718  Burns  1894) ;  sextons  of  churches,  and  officers 
of  fairs,  who  ex  officio  are  made  by  law  peace  officers  (Acts  of 
1881,  p.  174,  section  2074  Burns  1894) ;  the  state  chemist  by  Pur- 
due University  Board  (Acts  1881,  p.  511,  section  6618  Bums 
1894) ;  the  state  live  stock  sanitary  commission  by  the  state  board 
of  agriculture  (Acts  1889,  p.  380,  section  2871  Burns  1894) ;  the 
superintendents  of  schools  of  three  of  the  largest  cities  of  the  state, 
with  the  governor  and  presidents  of  the  higher  state  schools,  shall 
constitute  the  board  of  education  with  power  to  grant  state  certifi- 
cates of  qualification  to  teachers.  Acts  1875,  p.  130,  section  5849 
Burns  1894. 

We  hold,  therefore,that  the  General  Assembly  in  conferring 
upon  the  state  dental  association  power  to  appoint  three  members 
of  the  state  board  of  dental  examiners  did  not  transcend  its  con- 
stitutional power,  and  that  appointments  to  said  board  of  examin- 
ers by  said  association  are  valid. 

Judgment  affirmed. 

But  the  legislature  may  not  provide  a  method  of  filling  an  office 
which  is  inconsistent  with  the  provisions  of  the  constitution.  State 
ex  rel.  Worrell  v.  Peelle,  121  Ind.  495,  infra. 


INDIANAPOLIS  BREWING  CO.  V.  CLAYPOOL.  21 

INDIANAPOLIS  BREWING  COMPANY  V.  CLAYPOOL. 

Supreme  Court  of  Indiana.    December,  1897. 
149  Ind.  193. 

McCabe,  C.  J.  The  legislature  of  1895  passed  an  act  approved 
March  1,  1895,  entitled  "An  act  to  establish,  a  department  of  pub- 
lie  parks  in  cities  having  more  than  one  hundred  thousand  popula- 
tion, according  to  the  last  preceding  United  States  census,  and  a 
board  of  park  commissioners,  defining  the  powers  and  duties  of 
such  board  and  matters  connected  therewith,  and  declaring  an 
emergency."  Sections  7240-7261  Horner's  R.  S.  1897,  (Acts  1895, 
p.  63).  The  appellant  brought  suit  against  the  appellees,  who  are 
the  acting  members  of  said  board,  and  certain  other  officers  ap- 
pointed by  the  circuit  court  at  the  instance  of  said  board,  under 
the  provisions  of  said  act,  to  enjoin  them  from  further  acting  by 
virtue  of  any  authority  conferred  on  them  by  said  act.  The  cir- 
cuit court  sustained  a  demurrer  to  the  complaint  for  want  of  suf- 
ficient facts ;  and,  the  plaintiff  refusing  to  plead  further  or  amend 
its  complaint,  the  court  rendered  judgment  that  the  plaintiff  take 
nothing  by  its  suit.  That  ruling  is  called  in  question  by  the  as- 
signment of  errors  as  the  only  error  complained  of  by  the  ap- 
pellant. The  ground  on  which  the  complaint  seeks  an  injunction 
is  that  the  act  is  unconstitutional. 

But  a  much  more  serious  question  is  presented  by  appellant's 
contention  that  the  act  violates  the  last  clause  of  section  two  of 
article  fifteen  of  our  state  constitution  (section  224,  Burns'  R.  S. 
1894;  224,  R.  S.  1881),  providing  that  "the  General  Assembly  shall 
not  create  any  office  the  tenure  of  which  shall  be  longer  than  four 
years. ' ' 

The  facts  are  disclosed  in  the  complaint  that  in  the  spring  of 
1895,  soon  after  the  passage  of  the  act  in  question  the  mayor  of 
Indianapolis  appointed  five  park  commissioners  to  serve  one,  two, 
three,  four,  and  five  years,  respectively,  from  January  1,  1895. 
That  made  the  term  of  the  one-year  commissioner  expire  on  Jan- 
uary 1,  1896,  and  his  successor  then  appointed  and  now  in  office, 
under  the  provisions  of  section  two  of  the  act,  under  a  term  of 
five  years,  running  till  January  1,  1901.  The  term  of  the  two-year 
commissioner  appointed  in  1895  expired  January  1,  1897,  when  he 
was  reappointed  as  his  own  successor,  and  is  now  in  office,  the  term 


2^ 


OFFICES  AND  OFFICERS. 


of  which,  under  section  two  of  the  act,  and  his  reappointment,  is 
five  years,  expiring  January  1,  1902.  And  the  term  of  the  five- 
year  commissioner  appointed  in  1895,  and  now  in  office  expires, 
January  1,  1900,  making  according  to  the  allegations  of  the  com- 
plaint, three  of  the  defendants  in  office  under  a  five-year  term 
or  tenure,  by  virtue  of  section  two  of  the  act.  Appellees'  conten- 
tion that  four  of  the  members  appointed  in  1895  hold  four-year 
terms,  and  therefore  are  and  always  had  been  a  legal  board  under 
section  six,  making  a  majority  a  quorum  authorized  to  do  binding 
acts,  is  contrary  to  the  facts  alleged  in  the  complaint,  even  if  that 
fact,  would  constitute  such  majority  a  legal  board. 

It  is  next  contended  that  section  two  is  valid  because  the  constitu- 
tional inhibition  only  operates  to  limit  the  terms  of  the  several  park 
commissioners  to  four  years,  respectively.  It  is  tacitly  conceded 
that,  if  the  restriction  cannot  be  obviated  in  this  way,  section  two 
must  fall,  as  a  palpable  violation  of  the  constitution.  This  ground 
of  upholding  that  part  of  the  section  other  than  the  tenure  clause 
is  based  on  the  familiar  principle  in  constitutional  law  that  a 
statute  may  be  good  in  part,  and  in  part  void,  because  unconstitu- 
tional. That  part  fixing  the  term  at  five  years,  it  is  in  effect  in- 
sisted, may  be  declared  void,  and  the  balance  of  the  section  stand. 
To  support  this  contention,  counsel  quote  from  Clem.  v.  State,  [33 
Ind.  526,]  as  follows:  **The  question  is  as  to  the  application  of 
this  restriction.  Does  it  in  the  case  in  hand  render  the  creation 
of  the  office  a  void  act  ?  .  .  .  .  But  we  are  of  opinion  that  the 
restriction  cannot  be  held  to  apply  where,  as  in  this  case,  no  tenure 
is  stated.  The  preceding  part  of  the  section  provides,  that  'when 
the  duration  of  any  office  is  not  provided  for  by  this  constitution  it 
may  be  declared  by  law ;  and,  if  not  so  declared,  such  office  shall  be 
held  during  the  pleasure  of  the  authority  making  the  appoint- 
ment.' This  language  seems  to  be  conclusive  in  support  of  the 
position  that  an  office  may  be  created  by  law  though  its  duration 
be  not  fixed,  as  in  this  case.  If  fixed  at  a  longer  term  than  four 
years  by  the  act  creating  it,  there  would  then  be  a  question 
whether  the  creation  of  the  office  was  not  void,  or  whether  valid, 
but  its  tenure  limited  to  four  years  by  force  of  the  constitution." 
This  is  as  much,  if  not  more,  against  appellees'  contention  than 
for  it.  It  not  only  suggests  the  query  whether  the  question  raised 
by  their  contention  should  be  decided  for  or  against  them  but  it 
furnishes  a  basis  for  reasoning  out  the  question  against  appellees. 
It  is  to  be  observed  that  it  is  not  the  tenure  of  more  than  four 
years  that  is  prohibited,  but  it  is  the  creation  of  an  office,  the 


INDIANAPOLIS  BREWING  CO.  V.  CLAYPOOL.  23 

tenure  of  which  shall  be  longer  than  four  years.  The  forbidden 
act  is  the  creation  of  the  office  of  the  particular  description  given 
as  much  as  the  inhibition  of  more  than  four  years'  tenure.  It 
would  seem,  therefore,  that  it  is  the  creation  of  the  office  that  is 
void,  as  much,  if  not  more,  than  the  act  of  affixing  a  tenure  of 
more  than  four  years.  If  the  language  were :  "No  office  created 
by  the  legislature  shall  have  a  longer  tenure  than  four  years,"  we 
should  have  a  very  different  question  to  decide. 

Our  attention  has  been  called  to  a  decision  of  the  supreme  court 
of  Kansas  upon  a  constitutional  provision  precisely  like  our  own, 
wherein  it  is  claimed  a  different  conclusion  was  reached  by  that 
court.  Lewis  v.  Lewelling,  53  Kan.  201,  36  Pac.  351.  The  report 
of  the  case  is  so  meagre  that  it  is  not  easy  to  understand  the  reason, 
if  there  was  any  reason,  for  the  conclusion  indicated.  The  only 
reason  assigned  for  the  conclusion  reached  is  the  decision  of  the 
supreme  court  of  California  cited.  The  whole  of  what  the  supreme 
court  of  Kansas  said  upon  that  branch  of  the  ease  is  as  follows: 
**The  provision  in  section  four  permitting  officers  to  be  commis- 
sioned for  a  term  of  five  years  is  violative  of  section  two,  article 
fifteen,  forbidding  the  legislature  to  create  any  office  the  tenure  of 
which  is  longer  than  four  years.  Military  officers  are  within  the 
provisions  of  the  constitution.  "Where  the  statute  fixes  a  term  of 
office  at  such  a  length  of  time  that  it  is  unconstitutional  the  tenure 
thereof  is  not  declared,  and  therefore  the  office  is  held  during  the 
pleasure  of  the  appointing  power.  People  v.  Ferry,  79  Cal.  105, 
21' Pac.  423." 

No  reason  is  assigned  by  the  Kansas  supreme  court  why  the  con- 
stitutional inhibition  forbidding  the  Kansas  legislature  to  create 
any  office  of  a  certain  tenure  did  not  render  the  forbidden  act  void. 
The  forbidden  act  there  as  here  was  the  creation  of  the  office  in 
plain  language  of  unmistakable  meaning. 

As  the  Kansas  supreme  court  gave  no  reason;  why  such  language 
should  not  be  given  its  full  force  and  meaning,  except  to  cite  the 
California  case,  we  must  assume  that  the  reasoning  in  that  case  is 
the  only  reason  on  which  the  Kansas  court  reached  its  conclusion. 
But,  when  we  examine  the  case,  we  find  that  it  furnished  no  reason 
whatever  for  the  Kansas  decision,  on  account  of  the  radical  differ- 
ence in  the  constitutional  provisions  of  California  and  Kansas. 
The  provision  as  it  stood  in  both  the  old  and  new  constitution  of 
California  received  the  consideration  of  the  California  supreme 
court  in  that  case.    That  in  the  old  reads  as  thus:    "Nor  shall  the 


24  OFFICES  AND  OFFICERS. 

duration  of  any  office  not  fixed  by  the  constitution  ever  exceed  four 
years;"  and  in  the  new  constitution  it  was:  "But  in  no  case  shall 
such  term  exceed  four  years."  This  language  in  no  way  forbids 
the  creation  of  the  office  with  a  tenure  exceeding  four  years,  but 
simply  limits  the  tenure  of  all  offices  created  by  the  legislature  to 
four  years.  This  language  fully  justifies  the  conclusions  reached 
by  the  California  supreme  court.  But  it  furnished  no  reason  what- 
ever for  the  decision  of  the  Kansas  supreme  court,  under  a  con- 
stitution, as  ours,  forbidding  the  creation  of  the  office  with  a  ten- 
ure exceeding  four  years.  If  the  act  was  forbidden  then,  it  was, 
in  so  far  as  it  created  the  office,  in  violation  of  the  constitution. 
It  therefore  appears  that  the  Kansas  decision  is  in  plain  violation 
of  the  constitution  of  that  state,  and  rests  on  no  reason  whatever. 
Such  a  decision  we  ought  not  and  cannot  follow. 

It  would  seem  to  follow  that  so  much  of  sections  one  and  two  of 
said  act  as  creates  the  office  of  park  commissioner  with  a  tenure  of 
five  years  is  in  violation  of  the  constitution,  and  void.  All  the  bal- 
ance of  the  act  is  inoperative,  for  the  sole  reason  that  there  are 
no  instrumentalities  left  with  which  to  carry  them  into  operation 
and  effect. 

It  results  that  the  defendants  are  doing  acts  affecting  the  plain- 
tiff's rights  that  they  have  no  authority  of  law  to  do,  because  there 
is  no  such  office  the  duties  of  which  they  claim  to  be  exercising. 
Hence,  the  complaint  stated  a  good  cause  of  action,  and  the  circuit 
court  erred  in  sustaining  a  demurrer  thereto. 

The  judgment  is  reversed,  with  instructions  to  overrule  the  de- 
murrer, and  for  further  proceedings  not  inconsistent  with  this 
opinion. 

Monks,  J.,  dissenting. 


KOCH  V.  MAYOR,  ETC. 

Court  of  Appeals  of  New  York.   March,  1897, 
152  N.  Y.  72. 

Vann,  J.  On  the  10th  of  May,  1895,  the  legislature  of  the 
state  enacted  that:  "From  and  after  midnight  of  the  thirtieth 
day  of  June,  1895,  the  office  of  police  justice  in  the  city  and  county 
of  New  York  is  abolished,  and  all  power,  authority,  duties  and 


KOCH  V.  MAYOR,  ETC.  25 

jurisdiction  then  vested  in  the  police  justices  in  the  said  city  and 
county  of  New  York,  and  in  the  courts  held  by  them,  including  the 
Court  of  Special  Sessions,  and  in  the  board  of  police  justices,  and 
in  the  clerks,  deputy  clerks  and  police  clerks'  assistants,  and  in  all 
other  officers  and  employees  of  said  justices  or  courts,  or  of  the 
board  of  police  justices,  shall  cease  and  determine."  L.  1895,  ch. 
601,  §  1. 

The  main  question  presented  for  decision  by  this  appeal  is, 
whether  that  section  is  in  violation  of  the  constitution  of  the  state. 

The  provision  that  he  relies  upon  to. nullify  the  legislation  in 
question  is  section  22  of  article  VI.,  which  is  as  follows:  ** Justices 
of  the  peace,  and  other  local  judicial  officers,  provided  for  in  sec- 
tions seventeen  and  eighteen,  in  office  when  this  article  takes  effect, 
shall  hold  their  offices  until  the  expiration  of  their  respective 
terms." 

I  think  that  section  twenty-two  wias  intended  to  operate  as  a 
saving  clause,  and  that  it  has  no  other  effect.  This  left  the 
legislature  with  untrammeled  power  to  repeal  the  act  creating  the 
offices  in  question  and  to  re-organize  the  local  courts  of  criminal 
jurisdiction  in  the  city  of  New  York  upon  the  new  basis  that  it 
adopted.  While  we  are  all  of  one  mind  as  to  the  power  of  the 
legislature  to  pass  the  act  under  review,  we  differ  as  to  the  meaning 
of  section  twenty-two  of  article  six.  The  views  of  some  members  of 
the  court  upon  the  question  have  already  been  expressed.  Others 
are  of  the  opinion  that  the  intention  of  the  constitution  was  to  re- 
tain the  police  justices  in  office  for  their  respective  terms  until,  by 
the  lapse  of  time,  death  or  otherwise,  outside  of  legislation,  their 
terms  should  expire;  that,  if  there  had  been  no  abolition  of  the 
court,  this  legislation  could  not  be  sustained;  that  it  would  not 
have  been  competent  for  the  legislature  to  declare  that  the  offices 
of  these  justices  should  terminate  and  be  vacant  and  to  provide  for 
the  election  of  others  in  their  places  during  the  periods  for  which 
they  were  appointed ;  that,  however,  there  was  no  intention  to  take 
away  from  the  legislature  the  right  of  abrogating  the  court,  and 
that  the  abrogation  of  the  court  carried  with  it  as  a  necessary 
and  inseparable  incident  the  termination  of  the  official  life  of  the 
several  incumbents  of  the  office ;  that  as  the  new  court  differs  in  its 
organization  and  jurisdiction  from  the  old  we  have  no  power  to  say 
that  the  abolition  of  the  court  was  a  scheme  to  turn  these  men  out 
of  office,  or  to  speculate  on  the  reasons  which  induced  the  legisla- 


26  OFFICES  AND  OFFICERS. 

ture  to  exercise  the  acknowledged  power  to  abolish  courts  not 
established  by  the  constitution,  and  that  the  act  in  question  is, 
therefore,  valid. 

While  we  thus  differ  as  to  the  method  of  reaching  the  result, 
we  are  all  of  the  opinion  that  the  legislation,  challenged  by  this 
appeal,  is  not  in  violation  of  the  constitution,  and  that  the  judgment 
should  be  affirmed. 

All  concur.  Judgment  affirmed. 

The  power  to  abolish  a  municipal  office  is  possessed  hy  the  cor- 
porate authority  which  by  law  has  the  power  to  establish  the  office,  Au- 
gusta V.  Sweeney,  44  Ga.  463.  An  office  not  being  a  contract,  Attor- 
ney General  v.  Jochim,  99  Mich.  358,  infra,  the  legislature  may  shorten 
its  term,  Butler  v.  Pennsylvania,  10  How.  U.  S.  402,  supra;  increase 
its  duties  without  increasing  its  emoluments,  or  diminish  its  emolu- 
ments during  the  term  of  an  incumbent,  Taft  v.  Adams,  3  Gray,  126; 
People  V.  Devlin,  33  N.  Y.  269;  State  v.  Douglass,  26  Wis.  428, 


CHAPTER   II. 

THE  FORMATION  OF  THE  OFFICIAL  RELATION. 

I.    The  Law  of  Elections. 

1.    The  right  to  vote. 

KINNEEN  V.  WELLS. 

Supreme  Judicial  Court  of  Massachusetts.     May,  1888. 
144  Mass.  497. 

Devens,  J.  The  case  at  bar  is  an  action  of  tort  against  the 
registrars  of  voters  in  the  city  of  Cambridge  to  recover  damages 
for  wrongfully  refusing,  as  the  plaintiff  alleges,  to  register  him  as 
a  voter  for  the  state  election  of  1886 

The  case  raises  but  a  single  question,  although  one  of  much  im- 
portance. The  defendants  refused  to  register  the  plaintiff  be- 
cause he  had  been  naturalized  thirty  days  previously  to  his  applica- 
tion for  registration.  They  were  fully  justified  in  so  doing,  under 
the  St.  of  1885,  c.  345,  Sec.  7,  if  the  provisions  of  this  section  are 
constitutional.  This  section  enacts  that  '*no  person  hereafter 
naturalized  in  any  court  shall  be  entitled  to  be  registered  as  a 
voter  within  thirty  days  of  such  naturalization." 

By  naturalization,  the  plaintiff  became  eo  instanti  a  citizen  of 
the  United  States,  and  therefore  a  citizen  of  the  ....  state 
of  his  residence. 

The  right  or  privilege  of  voting  is  a  right  or  privilege  arising 
under  the  constitution  of  each  state,  and  not  under  the  Constitution 
of  the  United  States.  The  voter  is  entitled  to  vote  in  the  election 
of  officers  of  the  United  States  by  reason  of  the  fact  that  he  is  a 
voter  in  the  state  in  which  he  resides.  He  exercises  this  right  be- 
cause he  is  entitled  to  by  the  laws  of  the  state  where  he  offers  to 
exercise  it,  and  not  because  he  is  a  citizen  of  the  United  States. 
United  States  v.  Anthony,  11  Blatchf.  200 

The  qualifications  of  voters  are  fixed  by  State  legislation.  The 
requisitions   as   to   ownership   of   property,   citizenship,   sex  and 

27 


28  FORMATION  OP  THE  OPPICIAL.  RELATION. 

residence,  in  connection  with  the  right  of  voting,  vary  with  the 
constitutions  or  laws  of  the  several  states.  However,  unwise,  un- 
just, or  even  tyrannical  its  regulations  may  be  or  seem  to  be  in 
this  regard,  the  right  of  each  State  to  define  the  qualifications  of 
its  voters  is  complete  and  perfect,  so  far  as  it  is  controlled  by 
the  fifteenth  article  of  the  Amendments  of  the  Constitution  of 
the  United  States,  which  provides  that ' '  the  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  state,  on  account  of  race,  color  or  previous  condi- 
tion of  servitude.  "1 

The  question  whether  Sec.  7  of  the  St.  of  1885,  c.  345,  is  con- 
stitutional, must  be  decided  by  determining  whether  this  legislation 
is  in  conformity  with  the  constitution  of  this  commonwealth  or 
whether  it  adds  anything  to  the  qualifications  which  the  voter  is 
thereby  required  to  possess,  and  thus  interferes  with  the  enjoy- 
ment of  the  rights  with  which  this  Constitution  invests  him. 

The  third  article  of  the  Amendments  of  the  Constitution  of  Mass- 
achusetts, adopted  in  1821,  is  as  follows:  "Every  male  citizen 
of  twenty-one  years  of  age  and  upwards,  excepting  paupers  and 
persons  under  guardianship,  who  shall  have  resided  within  the 
commonwealth  one  year,  and  within  the  town  or  district,  in  which 
he  may  claim  a  right  to  vote,  six  calendar  months  next  preceding 
any  election  of  governor,  lieutenant-governor,  senators,  or  repre- 
sentatives, and  who  shall  have  paid,  by  himself,  or  his  parent,  mas- 
ter, or  guardian,  any  state  or  county  tax,  which  shall,  within  two 
years  next  preceding  such  election,  have  been  assessed  upon  him,  in 
any  town  or  district  of  this  Commonwealth ;  and  also,  every  citizen 
who  shall  be,  in  all  other  respects,  qualified  as  above  mentioned, 
shall  have  a  right  to  vote  in  such  election  of  governor,  lieutenant- 
governor,  senators  and  representatives;  and  no  other  person  shall 
be  entitled  to  vote  in  such  elections." 

A  reading  and  writing  qualification  was  established  in  1857,  by 
article  20  of  the  Amendments  of  the  Constitution.  But  this  it 
will  not  be  necessary  to  consider  in  the  present  discussion. 

The  qualifications  of  voters  are  thus  defined  with  clearness  and 
precision ;  without  the  possession  of  these,  the  citizen  or  inhabitant 
cannot  exercise  the  privilege  of  voting,  and  as  whoever  possesses 
them  is  by  the  Constitution  entitled  to  this  privilege,  legislation 
cannot  deprive  him  of  it.    By  the  Constitution,  c.  1,  sec.  1,  art.  4, 

>In  the  territories  Congress  determines  who  shall  vote.  Murphy  v. 
Ramsay,  114  U.  S.  15,  44. 


KINNEEN  V.   WELLS.  29 

full  power  and  authority  are  given  to  the  General  Court  ''from 
time  to  time  to  make,  ordain,  and  establish,  all  manner  of  whole- 
some and  reasonable  orders,  laws,  statutes,  and  ordinances,  direc- 
tions and  instructions,  either  with  penalties  or  without;  so  as  the 
same  be  not  repugnant  or  contrary  to  this  Constitution,  as  they 
shall  judge  to  be  for  the  good  and  welfare  of  this  Commonwealth, 
and  for  the  government  and  ordering  thereof,  and  of  the  subjects 
of  the  same,  and  for  the  necessary  support  and  defence  of  the 
government  thereof."  To  the  provisions  of  the  Constitution  all 
legislation  is  thus  made  subordinate,  and  it  cannot  add  to  nor 
diminish  the  qualifications  of  a  voter  which  that  instrument  has 
prescribed.  Blanchard  v.  Stearns,  5  Met.  298,  301;  Williams  v. 
Whiting,  11  Mass.  424,  433 

The  plaintiff  according  to  the  allegations  of  his  declaration 
possessed,  when  he  offered  himself  for  registration,  all  the  quali- 
fications of  a  voter  required  by  the  Constitution.  Any  legislation 
by  which  the  exercise  of  his  rights  is  postponed  diminishes  them, 
and  must  be  unconstitutional,  unless  it  can  be  defended  on  the 
ground  that  it  is  reasonable  and  necessary,  in  order  that  the 
rights  of  the  proposed  voter  may  be  ascertained  and  proved,  and 
thus  the  rights  of  others  (which  are  to  be  protected  as  well  as 
his  own)  guarded  against  the  danger  of  illegal  voting. 

The  plaintiff  in  the  case  at  bar  does  not  contend  that  the  legis- 
lature has  not  the  right  to  make  any  reasonable,  uniform,  and 
impartial  regulation  of  the  mode  of  exercising  the  right  of  suff- 
rage, and  also  of  ascertaining  the  qualifications  of  voters.  He 
denies  that  section  7  of  the  statute  under  discussion  is  of  this 
character. 

If  section  7  of  the  St.  of  1885,  c.  345,  were  general  in  terms, 
and  allowed  no  person  to  register  as  a  voter  until  he  had  possessed 
the  requisite  qualifications  for  a  period  of  thirty  days,  it  would 
be  difficult  to  maintain  its  constitutionality.  It  would  still  provide 
for  adding  another  qualification  to  those  required  by  the  Constitu- 
tion, as  much  as  if  the  period  of  domicil  within  the  town  or  the 
Commonwealth,  required  by  the  constitution  before  voting,  were 
extended  to  a  longer  period.  State  v.  Williams,  5  Wis.  308 ;  Quinn 
v.  State,  35  Ind.  485. 

But  serious  as  these  objections  would  be  to  the  constitutionality 


80  FORMATION  OP  THE  OFFICIAL  RELATION. 

of  a  general  law  applicable  to  all  classes  of  citizens,  it  is  not 
necessary  now  to  consider  them,  as  the  section  of  the  statute  in 
question  presents  a  diflficulty  even  more  serious.  It  undertakes  to 
prevent  a  single  class  of  citizens,  namely,  those  who  are  naturalized, 
possessing  all  the  qualifications  established  by  the  constitution  of 
the  Commonwealth,  from  exercising  the  right  with  which  the 
constitution  invests  them,  for  a  period  of  thirty  days,  by  for- 
bidding the  registrars  of  voters  to  register  them  during  that 
period.  All  citizens  must  stand  equal  before  the  law,  and  the 
statute,  assuming  them  to  be  citizens,  imposes  this  prohibition  upon 
them  as  citizens  of  a  specified  class.  A  statute  regulating  the  ex- 
ercise of  the  right  of  suffrage,  or  the  ascertainment  of  the  qualifica- 
tions of  voters,  must  not  only  be  reasonable  in  its  character,  but 
uniform  and  impartial  in  its  application.  If  it  were  possible  to 
impose  a  period  of  probation  upon  all  qualified  citizens  before  they 
were  entitled  to  exercise  the  privilege,  it  certainly  is  not  possible 
under  the  constitution  to  select  a  single  class  and  impose  it  on  this 
class  alone. 

It  was  suggested  at  the  argument,  that  the  section  of  the 
statute  here  in  question  might  be  upheld  as  a  reasonable  regula- 
tion to  protect  the  public  from  possible  fraud  in  obtaining  certifi- 
cates of  naturalization,  and  that  the  delay  of  thirty  days  before 
naturalized  citizens  are  permitted  to  register  allows  this  investi- 
gation. But  the  board  of  registrars  is  not  competent  to  pass 
upon  the  question  whether  a  certificate  of  naturalization  was  er- 
roneously granted,  nor  can  such  a  certificate  be  thus  attacked  before 
them  collaterally.  The  only  question  upon  this  part  of  their  in- 
quiry into  the  qualifications  of  the  applicant  is  whether  he  is  in 
fact  the  person  named  in  the  certificate  he  produces,  if  such  certifi- 
cate be  itself  properly  authenticated.  It  is  a  question  of  identity 
solely. 

No  argument  in  favor  of  the  constitutionality  of  the  section 
can  be  founded  upon  any  peculiarity  in  the  situation  of  naturalized 
citizens,  which  renders  an  inquiry  in  regard  to  their  qualifications 
different  from  similar  inquiries  when  applied  to  all  other  citizens. 
The  regulation  which  it  assumes  to  make  is  partial,  and  calculated 
injuriously  to  restrain  and  impede,  in  the  exercise  of  its  rights, 
the  class  to  which  it  applies,  in  that  it  denies  to  this  class,  for 
the  period  of  thirty  days,  the  exercise  of  a  right  which  the  con- 
stitution has  conferred  upon  it.  There  is  no  warrant  for  this 
within  the  just  and  constitutional  limits  of  the  legislative  power. 


ROGERS  V.   JACOBS.  31 

which  permits  reasonable  and  uniform  regulations  to  be  made  as  to 
the  time  and  mode  of  exercising  the  right  of  suffrage,  and  as  to  the 
ascertainment  of  the  qualifications  of  voters.  We  must  therefore 
pronounce  section  7  of  the  St.  of  1885,  c.  345,  to  be  unconstitu- 
tional. 


Where  the  constitution  prescribes  who  are  voters  the  legislature 
may  not  require  the  payment  of  taxes  where  that  is  not  required  by 
the  constitution  or  residence  in  the  district  for  a  longer  period  than 
that  provided  in  the  constitution  as  a  qualification  for  voting.  People 
V.  Canaday,  73  N.  C.  198;  St.  Joseph  etc.,  R,  R.  Co.  v.  The  Buchanan 
County  Court,  39  Mo.  485.  Nor  may  the  legislature  take  away  any 
of  the  constitutional  qualifications  as  by  permitting  women  to  vote 
where  the  constitution  requires  the  male  sex.  Coffin  v.  Election  Com- 
missioners, 97  Mich.  188;  In  re  Gage,  141  N.  Y.  112. 


ROGERS  V.  JACOBS. 


Supreme  Court  of  Kentucky.     January,  1889, 
88  Ky.  502. 

Chief  Justice  Lewis  delivered  the  opinion  of  the  court. 

Appellant,  a  citizen  and  owner  of  real  and  personal  property  in 
the  city  of  Louisville,  instituted  this  action  for  an  injunction  to 
prevent  appellees,  mayor  and  auditor,  issuing  certain  municipal 
bonds  which  the  general  council,  by  an  ordinance  passed  October 
20,  1888,  authorized  and  sold  for  purposes  therein  specified,  in 
case  of  approval  by  a  majority  of  qualified  voters  of  the  city  voting 
at  an  election  that  was  held  November  14,  1888. 

As  the  only  cause  stated  in  the  petition,  or  now  relied  on  in 
argument,  for  the  relief  prayed  for,  is  that  the  election  is  void  for 
the  reason  it  was  held  in  the  manner  prescribed  by  an  act  of 
the  General  Assembly,  entitled  "An  act  to  regulate  municipal  elec- 
tions in  the  city  of  Louisville,"  approved  February  24,  1888,  the 
only  question  necessary  or  proper  to  be  decided  on  this  appeal  is 
whether  that  statute  is  valid. 

It  is  contended  that  the  act  conflicts  with  three  distinct  provis- 
ions of  the  Constitution. 


82  FORMATION  OF  THE  OFFICIAL  RELATION. 

3.  Section  5,  article  10,  which  provides  that  all  elections  shall 
be  **free  and  equal." 

A  statute  requiring  votes  to  be  given  by  ballot  need  not,  any 
more  than  the  mode  of  voting  viva  voce,  operate  unequally,  or  so  as 
to  deprive  any  person  entitled  of  the  privilege  of  suffrage,  and  if 
the  one  we  are  considering  conflicts  with  that  clause  of  the  con- 
stitution, or  denies  the  privilege  of  free  suffrage,  which  really  ex- 
ists independent  of  that  section,  it  is  simply  on  account  of  defect 
or  vice  of  some  particular  provision,  not  indispensable  to  the 
general  or  successful  operation  of  the  law.  And  the  only  ques- 
tion about  which  we  have  any  diflSculty  is  in  regard  to  section  9, 
that,  by  requiring  each  voter  to  retire  to  a  compartment,  and 
there  being  alone  and  unaided,  indicate  by  a  mark  on  his  ballot  the 
various  candidates,  for  numerous  offices,  he  wishes  to  vote  for, 
practically  operates  to  deprive  those  unable  to  read  or  write  of  a 
free  and  intelligible  choice,  and,  in  fact,  makes  free  suffrage  as  to 
them  a  matter  of  chance  or  accident.  And  thus,  while  the  rights 
and  interests  of  many  may  be  involved,  and  should  not  be  denied  or 
jeopardized  by  nullifying  the  entire  statute  already  in  operation, 
if  it  is  in  other  respects  valid,  we  have  no  right  to  sanction  any 
law,  or  part  of  a  law,  that  takes  from  a  single  human  being  his 
constitutional  rights.  It  is,  however,  permissible  and  often  im- 
portant, to  limit  the  operation  of,  disregard  or  strike  from  a 
statute  one  or  more  provisions  that  conflict  with  the  constitution, 
rather  than  allow  them  to  vitiate  the  whole.  And  in  accordance 
with,  or  at  least  in  analogy  to,  that  rule,  section  9,  must  be  held 
inoperative  to  the  extent  it,  in  the  manner  mentioned,  deprives 
illiterate  persons  of  the  opportunity  and  means  of  freely  and  in- 
telligently voting,  for  they  have  the  right  to  avail  themselves  of 
whatever  reasonable  aid  and  information  may  be  necessary  to  en- 
able them  to  cast  their  ballots  understandingly,  and  cannot  be  legal- 
ly deprived  of  it.  But  as  the  statute  is  valid  in  other  respects, 
the  general  demurrer  to  the  petition  was  properly  sustained,  and 
judgment  dismissing  the  action  is  affirmed. 


ATTY.  GENL.  EX  REL.  CONELY  V.  COMMON  COUNCIL.  33 

ATTORNEY  GENERAL  EX  REL.  CONELY  V.  COMMON 

COUNCIL. 

Supreme  Court  of  Michigan.    December,  1889. 

78  Mich.  545. 

MoBSE,  J.  At  the  last  session  of  the  legislature  an  act  was 
passed,  entitled: 

"An  act  to  preserve  the  purity  of  elections  and  guard  against 
abuses  of  the  elective  franchise,  in  the  city  of  Detroit." 

This  act  was  approved  by  the  governor  July  1,  1889,  upon  which 
day  it  took  effect,  and  became  operative.  Local  Acts  of  1889,  p. 
994. 

The  relator,  in  his  petition,  sets  forth  that  the  common  council 
of  the  city  of  Detroit  has  neglected  and  failed  to  comply  with  the 
law,  and  still  fails  and  neglects  to  do  so,  although  well  aware 
that  the  necessity  of  such  compliance  is  reasonable  and  urgent; 
and  he  believes  that  said  common  council  intend  to  ignore  the  act 
entirely,  and  that  such  body  intend  to  hold  the  city  election  to 
take  place  in  November,  1889,  under  the  registration  and  election 
laws  in  force  before  the  passage  of  this  act,  the  same  in  every 
respect  as  if  no  such  act  had  been  passed.  The  Attorney  General 
therefore  asks  that  this  court  issue  a  peremptory  mandamus  to 

compel  said  common  council to  provide  suitable  and 

proper  means  for  the  registration  of  electors. 

The  common  council  of  the  city  of  Detroit,  in  answer  to  the 
order  to  show  cause  why  the  writ  of  mandamus  should  not  issue  to 
compel  them  to  obey  this  law,  says : 

3.  That  this  law  will  also  disfranchise  a  large  number  of  elec- 
tors, residents  of  Detroit,  who  do  business  outside  of  and  away 
from  said  city,  as  such  persons  will  necessarily  be  absent  from  the 
city  during  the  days  fixed  by  this  act  for  registration. 

4.  That  it  will  also  disfranchise  those  persons  who  from  sickness 
are  unable  to  appear  before  the  boards  of  registration  on  such 
days. 

5.  That  it  will  disfranchise  those  moving  from  one  ward  to 
another  after  the  last  day  of  registration,  who  are  electors  under 
the  constitution  and  general  laws  of  the  state  as  to  qualifications 
of  voters. 


34  FORMATION  OP  THE  OFFICIAL  RELATION. 

That  for  these  reasons,  and  for  other  good  and  substantial  rea- 
sons appearing  upon  the  face  of  the  law,  the  act  is  inoperative, 
burdensome,  unreasonable,  unconstitutional  and  void. 

Upon  hearing  and  argument  of  this  matter  upon  petition  and 
answer,  we,  on  October  11,  1889,  denied  the  application  for  the 
writ.     The  reasons  for  so  doing  will  now  be  stated. 

In  my  view  the  law  is  unreasonable  and  void  in  that  it  under- 
takes to  disfranchise  a  large  number  of  voters,  through  no  fault  of 
their  own,  and  to  make  an  unjust  and  unlawful  distinction  between 
the  rights  of  native-bom  and  naturalized  citizens  and  electors. 
The  constitution  authorizes  the  legislature  to  enact  laws  "to  pre- 
serve the  purity  of  elections,  and  guard  against  abuses  of  the 
elective  franchise;"  but  this  does  not  authorize  by  direction  or 
indirection,  the  disfranchisement,  without  his  own  fault  or  neg- 
legence,  of  any  elector  under  the  constitution.     Article  7,  sec.  6. 

The  constitution  provides  that — 

"In  all  elections,  every  male  citizen,  every  male  inhabitant 
residing  in  the  state  on  the  24th  day  of  June,  1835,  every  male  in- 
habitant residing  in  the  state  on  the  first  day  of  January,  1850, 
who  has  declared  his  intention  to  become  a  citizen  of  the  United 
States,  pursuant  to  the  laws  thereof,  six  months  preceding  an  elec- 
tion, or  who  has  resided  in  the  state  two  years  and  six  months,  and 
declared  his  intention  as  aforesaid,  and  every  civilized  male  in- 
habitant of  Indian  descent,  a  native  of  the  United  States,  and  not 
a  member  of  any  tribe,  shall  be  an  elector,  and  entitled  to  vote; 
but  no  citizen  or  inhabitant  shall  be  an  elector,  or  entitled  to 
vote  at  any  election,  unless  he  shall  be  above  the  age  of  twenty- 
one  years,  and  has  resided  in  this  state  three  months,  and  in  the 
township  or  ward  in  which  he  offers  to  vote  ten  days  next  preceding- 
such  election." 

By  this  section  of  the  constitution  it  will  be  noticed  that  there 
are  five  distinct  classes  of  persons  who  are  made  electors,  and 
the  only  qualification  to  any  of  these  classes  is  that  the  elector 
shall  be  of  age,  and  have  resided  in  the  state  three  months,  and 
in  the  township  or  ward  where  he  offers  to  vote  ten  days,  next  pre- 
ceding the  election.  It  cannot  be  for  a  moment  contended  that  by 
section  6  of  article  7  the  framers  of  the  constitution  intended  to 
give  the  legislature  power  to  arbitrarily  disfranchise  any  elector 
who  is  such  under  section  1  of  the  same  article,  or  to  make  any 
difference  between  the  rights  of  any  of  the  classes  of  elector* 
therein  specified,  or  to  put  obstacles  in  the  way  to  the  ballot  box 


ATTY.  GENL.  EX  REL.   CONELY  V.  COMMON  COUNCIL.  35 

for  one  class,  while  the  road  is  left  open  to  another.  The  laws 
to  regulate  elections,  and  to  preserve  their  purity,  and  to  guard 
against  abuses  of  the  elective  franchise,  must  be  reasonable,  uni- 
form, and  impartial,  and  must  be  calculated  to  facilitate  and  se- 
cure, rather  than  to  subvert  and  impede,  the  exercise  of  the  right 
to  vote.    Capen  v.  Foster,  12  Pick.  488. 

Let  us  examine  the  act  before  us.  See  Local  Laws  of  1889,  p. 
994.  The  plan  of  registration  under  this  law  is  extensive  and 
minute  in  its  details.  In  this  discussion  we  shall  only  concern  our- 
selves with  its  general  features  and  results.  It  provides  that  in 
the  year  1889,  and  again  in  1892,  and  every  fourth  year  thereafter, 
striking  by  design  or  accident,  a  presidential  election  year,  there 
shall  be  a  new  complete  and  general  registration  of  voters  in  the 
city  of  Detroit.  And  it  is  made  the  duty  of  every  elector  to  see 
that  his  name  is  registered  in  compliance  with  the  requirements 
of  the  law,  and  he  shall  not  be  deemed  to  have  acquired  a  legal  resi- 
dence in  the  precinct  unless  he  has  so  caused  himself  to  be  reg- 
istered, '*nor  shall  any  ballot  be  received  by  the  inspectors  at  any 
election,  under  any  pretense  whatever,  unless  the  name  of  the 
person  offering  such  ballot  shall  have  been  entered  in  the  register 
of  the  precinct  in  which  he  claims  to  vote  as  herein  provided." 
Sections  3  and  4. 

The  elector  must  personally  apply  to  the  board  for  registra- 
tion, and  such  board  *' shall  examine  each  applicant."  Persons 
who  will  be  of  age  on  election  days,  having  the  other  qualifications 
of  electors,  may  be  entered  on  the  register.  "Every  applicant, 
in  the  years  when  a  general  new  registration  is  required,  who  has 
commenced  to  reside  in  such  precinct,  and  who  has  resided  therein 
at  least  two  days,"  if  he  be  otherwise  qualified,  shall  be  entered 
on  the  register,  and  can  vote  on  election  day,  if  he  has  resided 
therein  ten  full  days  next  preceding.    Section  7. 

The  meeting  of  these  boards  of  registration  for  1889,  and  for 
1892,  and  every  four  years  thereafter,  is  first  to  be  held  on  the 
first  Monday  of  October,  at  which  time  the  board  sits  for  four 
days,  and  also  again  one  day,  on  the  fourth  Monday  of  October. 
The  law  makes  no  provision  for  any  other  registration  in  the 
years  of  this  new  or  general  registration.  In  this  year,  the 
fourth  Monday  of  October  came  on  the  28th  and  the  city  elec- 
tion on  the  5th  of  November,  there  being  seven  days  between  the 
last  day  of  registration  and  election  day,  but  whenever  the 
month  of  October  begins  on  Sunday,  Monday  or  Saturday  more 
than  ten  days  will  ensue  between  the  last  day  of  registration  and 


36  FORMATION  OF  THE  OFFICIAL  RELATION. 

the  day  of  election,  and,  as  the  act  requires  that  the  elector  must 
have  actually  resided  in  the  precinct  two  days  before  his  name 
can  be  entered  on  the  registry  book,  this  act,  in  the  years  of 
general  registration,  will  disfranchise  every  voter  who  has  not 
resided  sixteen  or  more  days  in  the  precinct  before  election  day, 
whenever  the  month  of  October  begins  on  either  one  of  these  three 
days.  For  instance,  in  1888,  October  began  on  Monday.  The 
fourth  Monday  was  the  22d.  The  general  election  day  was  Novem- 
ber 6,  leaving  14  full  days  between  the  last  day  of  registration  and 
election;  and,  adding  the  two  days,  every  elector  not  residing 
within  the  precinct  for  16  full  days  before  the  day  of  election, 
under  this  act,  would  have  been  deprived  of  his  vote.  This  would 
be  in  direct  conflict  with  the  constitution,  which  makes  him  an 
elector  upon  a  residence  of  10  days.  No  such  regulation  as  this 
is  reasonable.  There  is  no  good  reason  why  the  boards  of  registra- 
tion cannot  sit  within  the  ten  days  before  election,  and  thereby  pre- 
serve to  each  elector  his  constitutional  right.  Nor  is  this  all. 
If  the  legislature  can  make  the  residence  12  or  16  days,  it  can 
make  it  a  month,  three  months,  one  year.  This,  in  my  opinion, 
cannot  be  done  indirectly,  under  the  guise  of  regulation,  any  more 
than  it  can  be  done  directly,  as  a  mere  exercise  of  the  legisla- 
tive will.  And  no  one  will  contend  that  the  legislature  could 
prescribe  by  statute  that  a  resident  of  the  City  of  Detroit  must 
reside  in  a  precinct  12  days,  16  days,  or  a  month,  before  his 
ballot  could  legally  be  taken  on  election  day,  in  the  face  of  the 
constitution,  which  provides  that  he  need  reside  therein  but  ten 
days. 

But  more  unreasonable  yet  is  this  act  in  that  it  contains  no 
provision  by  which  a  person  who  is  sick  or  absent  on  the  days  of 
registration  can  vote  on  election  day.  It  may  be  said,  with  some 
show  of  reason,  perhaps,  that  a  person  who  is  absent  on  the 
registration  days  is  himself  in  fault,  in  not  returning  to  his  home, 
and  complying  with  the  regulations  which  the  legislature  have  a 
right  to  prescribe;  but  the  man  who  is  ill  and  unable  to  attend 
the  meetings  of  the  board,  but  who  is  able  to  be  out  on  the  day 
of  election,  is  deprived  of  his  ballot,  and  for  no  good  reason,  that 
I  can  see.  And  neither  do  I  think  there  is  any  necessity  of  dis- 
franchising a  large  number  of  business  men,  who  will  be  disfran- 
chised unless  they  drop  important  business,  and  travel  many  miles 
to  be  registered,  some  seven  or  more  days  before  election.  There 
are,  under  this  law,  but  five  days  in  the  whole  year  that  an  elector 


ATTY.  GENL.  EX  REL.  CONELY  V.  COMMON  COUNCIL.  37 

can  cause  his  name  to  be  placed  on  the  registry  list;  and  this,  un- 
mistakably, by  the  provisions  of  the  act,  he  must  do  personally. 

There  is  no  state  in  the  union  that  has  ever  sustained  a  law  like 
this,  except  Illinois.  All  of  the  registration  laws  that  have  been 
upheld  by  the  courts  of  other  states  have  contained  some  provision 
by  which  a  sick  or  absent  voter  might  not  necessarily  be  disfran- 
chised, excepting  the  law  of  1885  in  Illinois.  See  People  v.  Hoff- 
man, 116  111.  587,  5  N.  E.  Rep.  596  and  8  id.  788. 

In  our  own  state  the  provision  as  to  sick  and  absent  voters  is 
well  known;  and  so  far  no  great  abuse  of  the  elective  franchise 
has  been  developed  from  the  exercise  of  the  privilege  therein 
granted,  of  registering  on  election  day.     How.  Stat.  Par.  93. 

The  object  of  a  registry  law,  or  of  any  law  to  preserve  the 
purity  of  the  ballot-box,  and  to  guard  against  the  abuses  of  the 
elective  franchise,  is  not  to  prevent  any  qualified  elector  from 
voting,  or  unnecessarily  to  hinder  or  impair  his  privilege.  It 
is  for  the  purpose  of  preventing  fraudulent  voting.  In  order  to 
prevent  fraud  at  the  ballot-box,  it  is  proper  and  legal  that  all 
needful  rules  and  regulations  be  made  to  that  end;  but  it  is  not 
necessary  that  such  rules  and  regulations  shall  be  so  unreason- 
able and  restrictive  as  to  exclude  a  large  number  of  legal  voters 
from  exercising  their  franchise.  Nor  can  the  legislature,  in  at- 
tempting, ostensibly,  to  prevent  fraud,  disfranchise  legal  voters 
without  their  own  fault  or  negligence.  The  power  of  the  legisla- 
ture in  such  cases  is  limited  to  laws  regulating  the  enjoyment  of 
the  right,  by  facilitating  its  lawful  exercise,  and  by  preventing 
its  abuse.  The  right  to  vote  must  not  be  impaired  by  the  regula- 
tion. It  must  be  regulation  not  destruction.  Page  v.  Allen,  58 
Penn.  St.  338;  Dells  v.  Kennedy,  49  Wis.  555;  Edmonds  v.  Ban- 
bury, 28  Iowa  267;  Mdnroe  v.  Collins,  17  Ohio  St.  665,  685;  Dag- 
gett v.  Hudson,  43  id.  561;  State  v.  Baker,  38  Wis.  71;  State  v. 
Butts,  31  Kan.  554. 

These  authorities  all  tend  in  one  direction.  They  hold  that 
the  legislature  has  a  right  to  reasonably  regulate  the  right  of 
suffrage,  as  to  the  manner  and  time  and  place  of  voting  and  to 
provide  all  necessary  and  reasonable  rules  to  establish  and  ascer- 
tain by  proper  proof  the  right  to  vote  of  any  person  offering  his 
ballot,  but  has  no  power  to  restrain  or  abridge  the  right,  or  un- 
necessarily to  impede  its  free  exercise.  This  law  before  us  dis- 
franchises every  person  too  ill  to  attend  the  board  of  registra- 


38  POEMATION  OP  THE  OFFICIAL  RELATION. 

tion,  and  unreasonably  and  unnecessarily  requires  persons  whose 
business  duties,  public  or  private,  are  outside  of  Detroit,  to  re- 
turn home  to  register  as  well  as  to  vote,  making  two  trips  when 
only  one  ought  to  be  required. 

Section  13,  in  reference  to  removals  from  one  precinct  to  an- 
other, and  the  necessary  steps  to  become  registered  in  such  cases, 
seems  to  me  most  unreasonable  and  unnecessary;  but  perhaps  this 
is  within  the  power  of  the  legislature,  as  it  is  not  absolutely  impos- 
sible to  comply  with  it. 

In  my  opinion,  no  registry  law  is  valid  which  deprives  an  elector 
of  his  constitutional  right  to  vote  by  any  regulation  with  which 
it  is  impossible  for  him  to  comply.  No  elector  can  lose  his  right 
to  vote,  the  highest  exercise  of  the  freeman's  will,  except  by 
his  own  fault  or  negligence.  If  the  legislature,  under  the  pre- 
text of  regulation,  can  destroy  this  constitutional  right  by  annex- 
ing an  additional  qualification  as  to  the  number  of  days  such 
voter  must  reside  within  a  precinct  before  he  can  vote  therein, 
or  any  other  requisite,  in  direct  opposition  to  any  of  the  con- 
stitutional requirements,  then  it  can  as  well  require  of  the  elector 
entirely  new  qualifications,  independent  of  the  constitution,  before 
the  right  of  suffrage  can  be  exercised.  If  the  exigencies  of  the 
times  are  such,  which  I  do  not  believe,  that  a  fair  and  honest  elec- 
tion cannot  be  held  in  Detroit,  or  in  any  other  place  in  our  state, 
without  other  qualifications  and  restrictions  upon  both  native-bom 
and  naturalized  citizens  than  those  now  found  in  or  authorized  by 
the  constitution,  then  the  remedy  is  with  the  people  to  alter  such 
constitution  by  the  lawful  methods  pointed  out  and  permitted  by 
that  instrument 

This  law  being,  in  the  respects  pointed  out,  both  unreasonable 
and  in  conflict  with  the  constitution,  and  it  being  apparent  that 
the  legislature  would  not  have  enacted  the  other  portions  of  the 
act  had  it  foreseen  that  the  courts  would  declare  these  parts  un- 
constitutional, the  whole  act  must  fall  and  be  held  unconstitutional 
and  void.  Dells  v.  Kennedy,  49  Wis.  560,  and  cases  cited;  Dag- 
gett V.  Hudson,  43  Ohio  St.  561;  Brooks  v.  Hydom,  76  Mich,  273; 
42  N.  W.  Rep.  1122. 

The  other  justices  concurred. 


MAYNAKD  V.  BOAED  OF  CANVASSERS.  39 

MAYNARD  V.  BOARD  OF  CANVASSERS. 

Supreme  Court  of  Michigan.     October,  1890. 
84  Mich.  228. 

Champlin,  C.  J.  The  legislature,  at  its  biennial  session  of 
1889,  passed  an  act  numbered  254  (3  How.  Stat.  2835). 

Section  1  of  said  act  reads  as  follows: 

**See.  1.  The  people  of  the  State  of  Michigan  enact,  That,  in 
all  elections  of  representatives  to  the  state  legislature  in  districts 
where  more  than  one  is  to  be  elected,  each  qualified  elector  may 
cast  as  many  votes  for  one  candidate  as  there  are  representatives 
to  be  elected,  or  may  distribute  the  same  among  the  candidates  as 
he  may  see  fit,  and  the  candidates  highest  in  votes  shall  be  declared 
elected. 

The  city  of  Grjtnd  Rapids  comprises  one  election  district,  and 
is  entitled  to  elect  two  representatives  to  the  state  legislature.  It 
is  known  as  "The  First  Representative  District.'*  Fred  A.  May- 
nard,  the  relator,  is  an  elector  residing  in  that  district,  and  in  his 
petition  duly  verified,  in  which  he  prays  for  a  mandamus,  states 

that  the  inspectors  in  several  of  the  precincts 

counted  and  returned  the  cumulative  votes  for  relator  as  single 
votes  only;  that  the  board  of  district  canvassers  met,  and  from 
the  returns  made  a  statement  that,  for  said  office  of  representative, 
White  received  7,258  votes;  Hayward  7,074  votes;  Maynard,  the 
relator,  5,374  votes;  Thaw,  623  votes;  and  Belden,  1  vote,  and 
determined  that  "White  and  Hayward  were  elected;  that  relator 
had  the  greatest  number  of  votes,  and  was  duly  elected  representa- 
tive; that  he  bases  his  claim  to  election  upon  the  legality  of  said 
cumulative  votes,  and  avers  that  if  every  ballot  having  his  name 
only  for  representative  as  aforesaid,  with  the  statement  "two 
votes"  opposite  the  name  as  aforesaid,  shall  be  counted  as  two 
votes,  then  he  received  more  than  10,000  votes  for  said  office,  and 
this  exceeded  the  votes  given  for  any  other  candidate.  He  admits 
that,  if  said  votes  cannot  be  counted  for  him  cumulatively, — that 
is,  if  every  ballot  having  the  statement  "two  votes,"  as  aforesaid, 
for  him  is  legal  only  as  one  vote,  and  must  be  so  counted, — ^then 
the  said  White  and  Hajnvard  received  a  greater  number  of  votes 
for  representative  at  said  election  than  the  relator.  He  prays  for 
a  mandamus  to  compel  the  board  of  district  canvassers  to  declare 
him  elected,  and  that  the  chairman  and  clerk  certify  the  same. 


40  FORMATION  OF  THE  OFFICIAIj  RELATION. 

There  has  been  in  the  latter  half  of  the  present  century  a  grow- 
ing desire  to  secure  to  minorities  a  proportionate  representation  in 
legislative  and  corporate  bodies,  and  from  time  to  time  schemes 
have  been  advocated  by  those  who  have  desired  to  bring  about  what 
they  claim  as  a  reform  in  existing  modes  of  election  to  secure  to 
the  minority  a  just  and  proportionate  representation.  These 
schemes  may  be  reduced  to  four  well  recognized  classes,  viz. : 

1.  The  "restrictive,"  which  requires  a  certain  number  to  be 
elected  on  one  ticket,  and  prohibits  any  elector  from  voting  for 
the  whole  number  to  be  elected.  Thus,  if  four  are  to  be  elected, 
no  one  can  vote  for  more  than  two. 

2.  The  ** cumulative,"  which  requires  three  or  more  to  be 
elected  and  permits  the  elector  to  cast  as  many  votes  as  there  are 
persons  to  be  elected,  and  to  distribute  such  votes  among  the  can- 
didates as  the  elector  may  choose. 

3.  The  ** Geneva,"  ''free  vote"  or  ** Gilpin"  plan.  By  this 
plan  the  districts  are  required  to  be  large,  and  each  party  puts  in 
nomination  a  full  ticket,  and  each  voter  casts  a  single  ballot.  The 
whole  number  of  ballots  having  been  ascertained  the  sum  is  di- 
vided by  the  number  of  places  to  be  filled,  and  each  ticket  is 
entitled  to  the  places  in  proportion  to  the  number  of  votes  cast 
by  it,  taking  the  persons  elected  from  the  head  of  the  tickets. 
This  plan  doubtless  comes  nearest  to  a  proportional  representa- 
tion of  the  minority  of  any  plan  devised  which  is  practical  for 
popular  elections.  It  was  originated  by  Mr.  Gilpin  in  1844,  who 
advocated  it  in  a  pamphlet  published  in  Philadelphia.  It  has 
never  been  adopted  in  this  country,  but  has  become  the  liste  libre 
of  Geneva,  and  is  said  to  work  well  in  Switzerland. 

4.  The  "Hare"  plan,  or  "single  vote."  This  method  is  too 
intricate  and  tedious  ever  to  be  adopted  for  popular  elections  by 
the  people.  It  requires  successive  counts  and  redistribution  of  the 
votes  until  an  election  is  reached. 

The  effort  to  realize  minority  representation  by  the  use  of  the 
restrictive  method  was  tried  in  Ohio,  under  an  act  passed  in  that 
state.  The  law  was  declared  unconstitutional  by  the  supreme 
court.  State  v.  Constantine,  42  Ohio  St.,  437.  That  court  held 
that  it  was  the  right  of  every  elector  to  vote  for  every  candidate  or 
person  to  fill  the  oflfices  provided  by  law  to  be  elected  by  vote  of 
electors,  and  a  law  which  said  that  no  person  could  vote  for  more 
than  two  of  the  four  persons  to  be  elected  took  away  from  the 
elector  a  substantial  right  guaranteed  to  him  by  the  constitution. 

In  Pennsylvania,  Mr.  Buckalewe  for  many  years  advocated  the 


MAYNARD  V.  BOARD  OF  CANVASSERS.  41 

adoption  of  the  system  of  cumulative  voting  in  order  to  secure 
minority  representation;  and,  mainly  through  his  efforts,  in  1874 
a  provision  was  inserted  in  the  constitution  of  Pennsylvania  (ar- 
ticle 16,  section  4)  permitting  stockholders  in  corporations  to  vote 
cumulatively  upon  the  shares  of  stock.  It  was  held  in  Hays  v. 
Com.,  82  Penn.  St.  518,  that,  as  to  corporations  existing  at  the 
time  the  constitutional  provision  was  adopted,  the  constitutional 
provision  could  not  apply,  because  it  interfered  with  and  affected 
existing  vested  rights. 

In  Nebraska  (article  11,  section  5),  .  .  .  .  and  in  Califor- 
nia (article  12,  section  12),  by  constitutional  enactment,  cumula- 
tive voting  is  permitted  upon  stock  in  corporations.  So  far  as  I 
am  aware,  Illinois  is  the  only  state  which  has  tried  the  experiment 
of  cumulative  voting  for  members  of  the  legislature.  It  is  sig- 
nificant that  all  the  states  which  have  authorized  such  voting  have 
submitted  it  to  the  people  for  their  adoption  as  a  part  of  the  fun- 
damental law.  In  Ohio  the  legislature  endeavored  to  authorize  it 
without  a  constitutional  amendment,  and  it  was  declared  uncon- 
stitutional. 

Such  has  been  the  action  of  other  states.  Is  the  law  contrary 
to  the  constitution  of  this  state?  The  provisions  of  the  constitu- 
tion bearing  upon  this  question  are  those  relating  to  elections,  and 
those  to  the  election  of  representatives. 

It  was  conceded  upon  the  argument  by  counsel  who  appeared 
to  defend  the  constitutionality  of  this  law  that,  when  the  consti- 
tution was  adopted,  no  such  thing  was  thought  of  as  cumulative 
voting;  that  it  is  a  recent  invention;  and  that  our  people,  when 
they  adopted  the  constitution,  had  no  thought  of  investing  the 
legislature  with  the  right  of  enacting  a  cumulative  voting  law ;  but 
they  contend  that,  no  matter  what  has  been  the  uniform  custom, 
the  legislature  has  the  power  to  enact  a  cumulative  voting  law,  or 
any  other  law  that  is  not  expressly  or  by  plain  implication  forbid- 
den them  to  do  by  the  constitution. 

there  is  in  my  mind  no  doubt  that  the  act  under 

consideration  is  unconstitutional.  The  constitution  is  the  out- 
growth of  a  desire  of  the  people  for  a  representative  form  of  gov- 
ernment. The  foundation  of  such  a  system  of  government  is,  and 
always  has  been,  unless  the  people  have  otherwise  signified  by 


42  FORMATION  OP  THE  OFFICIAL  RELATION. 

their  constitution,  that  every  elector  entitled  to  cast  his  ballot 
stands  upon  a  complete  political  equality  with  every  other  elector, 
and  that  the  majority  or  plurality  of  votes  cast  for  any  person  or 
measure  must  prevail.  All  free  representative  governments  rest 
on  this,  and  there  is  no  other  way  in  which  a  free  government  may 
be  carried  on  and  maintained.  That  the  majority  must  rule,  lies 
at  the  root  of  the  system  of  a  republican  form  of  government  no 
less  than  it  does  in  a  democratic.  When  there  are  more  than  two 
candidates  for  the  same  office  placed  in  nomination,  it  may  often 
happen  that  one  candidate,  although  he  may  receive  more  votes 
than  any  other,  may  not  receive  a  majority  of  the  votes  cast.  Still 
the  principle  of  majority  rule  is  preserved,  for  in  such  case  more 
of  the  electors  prefer  such  candidate  than  they  do  any  other  par- 
ticular candidate  to  represent  them.  It  is  the  constitutional  right 
of  every  elector,  in  voting  for  any  person  to  represent  him  in  the 
legislature,  to  express  his  will  by  his  ballot;  and  such  vote  shall 
be  of  as  much  influence  or  weight  in  the  result,  as  to  any  candidate 
voted  for,  as  the  ballot  and  vote  of  any  other  elector.  The  con- 
stitution does  not  contemplate,  but  by  implication  forbids,  any 
elector  to  cast  more  than  one  vote  for  any  candidate  for  any  office. 
This  prohibition  is  implied  from  the  system  of  representative  gov- 
ernment provided  for  in  that  instrument. 

The  political  history  of  the  state  from  1836  to  the  present  time 
shows  that  every  elector  has  an  equal  voice  in  the  choice  of  those 
who  shall  represent  the  people  in  the  legislature.  It  is  implied 
in  those  provisions  of  the  constitution  which  require  that  repre- 
sentatives in  the  legislature  shall  be  chosen  by  ballot,  and  by  single 
districts.  By  these  provisions  every  elector  expresses  his  wish  by 
ballot,  and  a  single  vote  is  implied.  It  is  implied  in  those  pro- 
visions of  the  constitution  that  declare  that  every  male  citizen  of 
twenty-one  years  of  age,  and  possessing  the  qualifications  pre- 
scribed, shall  be  entitled  to  vote  at  all  elections ;  and  that  all  votes 
shall  be  given  by  ballot,  except  for  such  township  officers  as  may 
be  authorized  by  law  to  be  otherwise  chosen. 

Giving  to  the  language  of  the  constitution  its  ordinary  signifi- 
cation, it  declares  the  principle  that  each  elector  is  entitled  to 
express  his  choice  for  representative,  as  well  as  all  other  officers, 
which  is  by  his  vote,  and  the  manner  of  expressing  such  choice  is 
by  ballot.  When  he  has  expressed  his  preference  in  this  manner, 
he  has  exhausted  his  privilege;  and  it  is  not  in  the  power  of  the 
legislature  to  give  to  his  preference  or  choice,  without  conflicting 


MAYNARD  V.  BOARD  OF  CANVASSERS.  43 

with  these  provisions  of  the  constitution,  more  than  a  single  ex- 
pression of  opinion  or  choice.  As  to  members  of  the  legislature, 
county  or  township  officers,  the  constitution  nowhere  in  express 
terms  prohibits  the  legislature  from  enacting  a  law  that  the  cer- 
tificates of  election  shall  be  issued  to  the  person  having  the  least 
number  of  votes.  This  is  practically  what  is  asked  for  in  this  case, 
for  relator  admits  that  he  has  received  a  minority  of  the  votes 
cast,  if  each  relator  [elector]  can  cast  but  one  vote  for  a  candidate. 
No  one  would  contend  that  a  law  declaring  the  person  who  re- 
ceived the  least  number  of  votes  elected  to  an  office  would  be  a 
constitutional  and  valid  law;  and  yet  we  cannot  lay  our  finger  on 
the  clause  prohibiting  in  terms  such  legislation. 

It  is  true,  the  constitution  does  not  prohibit  the  legislature  by 
express  language  from  concocting  some  scheme  by  which  the  equal- 
ity of  the  electors  in  the  choice  of  representatives  may  be  impaired 
or  defeated.  There  is  nothing  in  the  constitution  which  by  ex- 
press language  prohibits  the  legislature  from  enacting  a  law  pro- 
viding that  such  electors  as  appear  by  the  assessment  roll  of  the 
preceding  year  to  have  been  assessed  $1,000  and  upward  shall  have 
an  additional  vote  for  each  $1,000  for  which  they  are  assessed  and 
pay  taxes  on.  This  would  permit  every  elector  qualified  under 
the  constitution  to  vote  at  least  once,  and  others  to  vote  as  many 
times  as  they  were  assessed  $1,000  upon  the  assessment  roll.  It 
requires  no  argument  to  show  that  such  legislation  would  defeat 
the  object  of  the  elective  franchise,  which  is  that  every  elector's 
franchise  is  of  equal  value  to  that  of  every  other  elector,  and  it 
would  subvert  the  will  of  the  people  as  expressed  through  the  bal- 
lot. And  such  is  the  case  before  us.  No  reason  can  be  given  why, 
under  our  constitution,  one  elector  should  be  permitted  to  vote 
twice  or  seven  times  for  any  particular  person  to  represent  him  in 
the  legislature,  when  any  other  elector,  who  desires  to  exercise 
the  right  which  the  constitution  gives  him  to  vote  for  every  person 
allowed  by  law  to  represent  him  in  the  legislature,  is  permitted 
to  vote  but  once.  The  choice  of  the  elector,  as  expressed  by  the 
ballot,  who  *  *  plumps ' '  his  vote  under  this  law  is  equal  to  the  choice 
of  two  electors  in  Grand  Rapids,  or  to  seven  in  Detroit,  who  exer- 
cise the  right  which  the  constitution  gives  him  to  vote  for  every 
candidate  to  be  chosen.  It  is  no  answer  to  say  that  he,  too,  may 
forego  the  right  of  an  elector  to  vote  for  the  number  of  repre- 
sentatives which  the  law  permits  in  cities  entitled  to  more  than 
one  representative;  for  to  do  so  he  is  compelled  to  relinquish  a 
constitutional  right,  and  his  right  as  an  elector  is  in  this  respect 


44  FORMATION  OP  THE  OFFICIAL  RELATION. 

abridged.  What  different  in  principle  or  in  result  is  this  law, 
which  permits  one  elector  to  cast  more  than  one  vote  for  a  can- 
didate, from  the  act  of  a  person  who  stuffs  a  ballot-box  with  more 
votes  for  a  particular  candidate  than  there  were  electors  voting 
for  him  ?  The  only  difference  is  that  in  one  case  the  will  of  the 
majority  is  overcome  and  defeated  under  the  forms  of  law,  and  in 
the  other  without  law.  Both  are  frauds  upon  the  rights  of  the 
majority  of  the  electors;  both  alike  strike  down  the  constitutional 
safeguards  of  the  people ;  both  are  subversive  of  a  free  representa- 
tive government 

Any  construction  of  the  constitution  which  will  permit  an 
elector  to  vote  more  than  once  for  the  same  person  to  be  a  repre-  ( 
sentative,  would  destroy  that  uniformity  of  the  right  of  every 
elector,  wherever  he  may  reside  in  this  state,  to  cast  one  vote, 
and  but  one  vote,  for  each  representative  for  which  he  is  entitled 
to  vote;  and  as  was  said  by  Mr.  Justice  Campbell  in  the  case  of 
Attorney  General  v.  Detroit  Common  Council,  58  Mich.  216: 

"It  cannot  be  lawful  to  create  substantial  or  serious  differences 
in  the  fundamental  rights  of  citizens  in  different  localities  in  the 
exercise  of  their  voting  franchise." 

The  law  under  consideration  does  create  substantial  and  serious 
differences  between  the  rights  of  the  electors  in  Grand  Rapids  and 
in  Detroit  and  those  of  other  parts  of  the  state,  in  the  exercise 
of  their  voting  franchises.  In  Grand  Rapids  it  defeats  the  will 
of  a  majority  of  the  electors,  and,  instead  of  securing  a  minority 
representation,  it  gives  an  equal  representation  with  the  majority. 
In  Detroit,  as  stated  upon  the  argument  of  the  learned  counsel, 
instead  of  that  municipality  being  represented  in  the  legislature 
by  those  electors  who  constituted  a  majority  who  voted  for  repre- 
sentative, and,  if  no  elector  had  voted  more  than  once  for  any 
candidate,  such  majority  would  have  elected  seven  representa- 
tives, the  minority  of  the  electors  voting  have  elected  four  out  of 
the  seven  by  "plumping"  their  votes  in  different  parts  of  the  city. 
Here  the  will  of  the  majority  has  been  defeated  and  overridden 
by  votes  which  do  not  represent  the  will  of  an  individual  elector 
in  each  case,  but  which  do  represent,  if  the  law  is  constitutional,  a 
legal  stuffing  of  the  ballot-boxes  with  false  votes.  In  this  state,  no 
matter  by  what  means  accomplished,  whether  because  a  candidate 
who  receives  a  majority  of  the  votes  is  ineligible,  or  whether  an 
elector  votes  more  than  once  for  a  candidate,  no  person  is  elected 
who  receives  only  the  vote  of  a  minority  of  the  electors  voting. 
People  V.  Molitor,  23  Mich.  341.    Although  the  constitution  re* 


HANNA  V.  YOUNG.  45 

quires  representatives  to  be  elected  upon  a  general  ticket  in  the 
cases  specified,  yet  every  elector  is  not  obliged  to  vote  for  every 
office  to  be  filled,  or  for  every  person  on  the  ticket.  He  may  vote 
for  one  or  more.  But  he  cannot  vote  more  than  once  for  any 
person,  for  the  reason  before  stated 

Upon  consideration  of  the  whole  record,  the  application  must  be 
denied. 

Morse  and  Long,  JJ.,  concurred  with  Champlin,  C.  J. 

Cahill,  J.,  dissenting. 

Where  limited  or  cumulative  voting  Is  permitted  by  the  constitution 
for  certain  officers  it  may  be  provided  by  the  legislature  for  others. 
Commonwealth  v.  Reeder,  171  Pa.  St.  505;  People  v.  Nelson,  133  111.  565. 


HANNA  V.  YOUNG. 


Court  of  Appeals  of  Maryland.    June,  1896. 
84  Md.  179. 

Egberts,  J.,  delivered  the  opinion  of  the  court. 

The  sole  object  of  this  appeal  is  to  test  the  validity  of  the  30th 
section  of  the  Act  of  the  General  Assembly  of  Maryland,  passed 
at  January  session,  1896,  ch,  359 

The  facts  proper  to  be  stated  are  that  an  election  for  five  town 
commissioners  was  held  in  the  town  of  Bel- Air,  on  the  first  Mon- 
day of  May,  1896,  and  conducted  in  accordance  with  the  pro- 
visions of  its  charter  as  amended  by  the  act  of  1896,  except  that 
judges  of  election,  as  required  by  section  30  of  said  act,  did  not, 
as  a  condition  precedent,  require  of  each  person  offering  to  vote 
at  such  election,  to  show  that  he  was  assessed  with  one  hundred 
dollars'  worth  of  real  or  personal  property  on  the  tax  book  of  said 
town  before  he  was  entitled  to  vote.  The  said  judges  of  election 
ignored  this  provision  of  the  Act  of  1896  and  allowed  all  male  citi- 
zens residing  within  the  corporate  limits  of  Bel-Air  above  the 
age  of  twenty-one  years  to  vote,  notwithstanding  the  right  of  a 
number  of  said  citizens  to  vote  was  challenged,  upon  the  ground 
that  they  were  not  assessed  with  the  requisite  amount  of  property. 
The  election  was  accordingly  conducted  as  if  the  Act  of  1896  had 
not  been  passed  or  was  void  of  legal  effect.     The  result  of  the 


46  FORMATION  OP  THE  OFFICIAL  RELATION. 

election  was  that  the  five  persons  receiving  the  highest  number 
of  votes  acted  as  if  they  had  been  duly  elected;  having  qualified 
and  organized,  they  proceeded  to  elect  James  C.  Young,  the  peti- 
tioner in  this  case,  treasurer  of  the  town  of  Bel- Air,  for  the  ensu- 
ing year.  The  petitioner  and  appellee  here,  having  qualified, 
demanded  of  the  appellant  who  had  on  the  first  Monday  of  May, 
1895,  been  elected  treasurer  of  Bel- Air,  the  possession  of  the 
books,  papers  and  other  property  of  the  town  then  in  his  posses- 
sion. This  the  appellant  refused  to  yield  and  the  appellee  ac- 
cordingly filed  his  petition  in  the  court  below,  for  the  writ  of 
mandamus  to  compel  the  delivery  to  him  of  said  books,  etc.  The 
appellant  answered  said  petition,  denying  the  validity  of  said  elec- 
tion and  justifying  his  refusal  to  deliver  said  books,  etc.,  because 
the  judges  conducting  said  election  had  failed  and  refused  to  ob- 
serve and  give  effect  to  the  provision  of  the  Act  of  1896,  which 
prescribed  a  property  qualification  for  said  electors  voting  at  said 
election.  Whereupon  issue  was  joined  and  the  case  was  heard 
by  the  court  below,  without  the  aid  of  a  jury.  The  court  directed 
the  writ  to  issue  and  from  the  order  of  the  court  this  appeal  is 
taken 

The  contention  here  is  that  the  30th  section  of  the  Act  of  1896  is 
directly  in  conflict  with  the  provisions  of  Art.  1,  sec.  1,  of  the 
constitution  of  the  state,  which  reads  as  follows:  "All  elections 
shall  be  by  ballot,  and  every  male  citizen  of  the  United  States,  of 
the  age  of  twenty-one  years,  or  upwards,  who  has  been  a  resident 
of  the  state  for  one  year,  and  of  the  Legislative  District  of  Balti- 
more City,  or  of  the  county,  in  which  he  may  offer  to  vote,  for 
six  months  next  preceding  the  election,  shall  be  entitled  to  vote, 
in  the  ward  or  election  district,  in  which  he  resides,  at  all  elections 
hereafter  to  be  held  in  this  state." 

It  is  contended  on  the  part  of  the  appellant  that  this  section 
of  the  constitution  plainly  comprehends  and  includes  within  its 
express  terms,  all  elections,  whether  state  or  federal,  county  or 
municipal.  Yet  there  is  but  one  municipality  mentioned  in  this 
section  of  the  organic  law,  and  in  fact,  Baltimore  City  is  the  only 
municipality  mentioned  eo  nomine  in  any  part  of  the  constitution. 
This  court  in  Smith  v.  Stephan,  66  Md.  381,  Mr.  Justice  Bryan 
delivering  the  opinion  of  the  court,  said:  "It  is  suflScient  to  say 
that  no  municipal  elections,  except  those  held  in  the  city  of  Balti- 
more, are  within  the  meaning  or  terms  of  the  constitution." 
Whilst  the  constitution.  Art.  3,  sec.  48,  authorizes  and  empowers 
the  General  Assembly  to  create  corporations  for  municipal  pur- 


HANNA  V.  YOUNG.  47 

poses,  it  nowhere  prohibits  the  legislature  from  imposing  upon 
the  qualified  voters,  residing  within  the  corporate  limits  of  a  town, 
any  reasonable  restrictions  it  may  deem  proper,  when  seeking  the 
exercise  of  the  right  of  elective  franchise  in  the  election  of  its 
officers,  In  this  respect  the  power  of  the  legislature  is  unlimited. 
The  argument  advanced  at  the  hearing  in  this  court  is  to  the  effect 
that  the  act  in  question  is  void  because  the  constitution  has  con- 
ferred the  right  and  prescribed  the  qualifications  of  all  electors 
in  this  state,  the  legislature  is  without  authority  to  change  or  add 
to  them  in  any  manner.  If  the  premises  of  this  contention  were 
correctly  stated,  the  argument  and  sequence  would  undoubtedly 
be  correct.  But,  as  already  observed,  the  constitution.  Art.  3,  sec. 
48,  only  in  general  terms  authorizes  the  creation  of  corporations 
for  municipal  purposes,  and  leaves  to  the  legislature  the  enactment 
of  such  details  as  it  may  deem  proper  in  the  management  of  the 
concerns  of  the  corporation,  or  which  may  be  regarded  as  bene- 
ficial in  the  government  of  the  same.  The  constitution  of  this 
state  provides  for  the  creation  of  certain  offices,  state  and  county, 
which  are  filled,  either  by  election  or  by  appointment;  and  we 
regard  it  as  an  unreasonable  inference  to  suppose  that  municipal 
elections  held  within  the  state  (outside  the  corporate  limits  of 
Baltimore  City)  can  be  properly  termed  elections  under  the  con- 
stitution, such  as  state  and  county  elections;  or  that  the  framers 
of  the  constitution  ever  contemplated  that  Art.  1,  sec.  1,  of  that 
instrument  was  intended  to  apply  to  municipal  elections,  such  as 
the  one  now  under  consideration,  which  is  the  mere  creature  of 
statutory  enactment.  In  the  creation  of  a  new  municipality,  the 
constitution  devolves  upon  the  General  Assembly  the  entire  duty 
of  giving  vitality  to  and  of  organizing  and  fostering  the  body  cor- 
porate without  any  other  constitutional  regulation  than  the  man- 
date to  provide  for  the  system  itself.  It  is  therefore  the  mere 
creature  of  legislative  sanction  and  the  subject  of  statutory  reg- 
ulation. In  the  case  of  State  of  Florida  ex  rel.  Lamar,  Attorney 
General  v.  Dillon,  32  Fla.  545,  it  was  held  that  the  suffrage  pro- 
vision in  the  constitution  of  the  state  (which  is  substantially  the 
same  as  Art.  1,  sec.  1,  in  the  constitution  of  this  state),  prescrib- 
ing the  qualifications  of  electors  at  all  elections  under  it^  does  not 
apply  to  elections  for  municipal  officers,  but  such  elections  are  sub- 
ject to  statutory  regulation;  and  further,  that  it  is  competent  for 
the  legislature  to  prescribe  the  qualifications  of  voters  at  the  same. 
It  is  only  at  elections  which  the  constitution  itself  requires  to 
be  held,  or  which  the  legislature  under  the  mandate  of  the  consti- 


48  FORMATION  OP  THE  OFFICIAL  RELATION. 

tution  makes  provision  for,  that  persons  having  the  qualifications 
set  forth  in  said  section  1,  Art.  1,  are  by  the  constitution  of  the 
state  declared  to  be  qualified  electors.  Nowhere  in  the  constitu- 
tion are  the  governments  of  municipalities  in  this  state,  or  their 
officials,  either  clothed  with  power  or  designated  as  any  part  of  our 
state  government,  but  their  very  creation,  together  with  all  the 
powers  and  attributes  which  attach  to  their  management,  are 
lodged  by  the  constitution  with  the  legislative  department  of  our 
state  government,  save  in  some  respects  the  city  of  Baltimore. 

The  same  question  now  under  consideration  here  arose  in  the 
case  of  McMahon  v.  Mayor  of  Savannah,  66  Ga.  217.  The  suf- 
frage clause  in  the  constitution  of  the  state  of  Georgia  is  almost 
in  totidem  verbis  the  same  as  that  in  the  constitution  of  this  state. 
The  statute  sought  to  be  declared  unconstitutional  was  assailed 
upon  the  ground  that  it  imposed  upon  the  electors  of  the  city  of 
Savannah  the  payment  of  a  poll-tax  as  a  condition  essential  to 
their  qualification  as  voters  at  any  municipal  election.  The  court 
held  the  statute  to  be  a  valid  exercise  of  legislative  power;  and 
further  held,  that  "all  legislative  acts  in  violation  of  the  constitu- 
tion are  void,  and  it  is  the  duty  of  the  judiciary  so  to  declare.  But 
in  considering  and  passing  upon  the  question  of  the  constitutional- 
ity of  the  law,  the  rule  is  too  well  established  and  settled  to  be 
departed  from;  that  it  must  be  made  to  appear  that  the  statute, 
before  it  is  declared  inoperative  for  that  cause,  must  be  'plainly 
and  palpably'  in  violation  of  the  constitution."  Beall  v.  Beall, 
8  Ga.  210.  The  solemn  act  of  the  government  will  not  be  set 
aside  by  the  courts  in  a  doubtful  case.  "The  incompatibility  or 
repugnancy  between  the  statute  and  the  constitution  must  be 
*  clear  and  palpable.'  "  Parham  v.  Justices,  9  Ga.  341.  We  also 
refer  to  the  cases  of  Buckner  v.  Gordon,  81  Ky.  666,  and  the  Mayor 
of  Valverde  v.  Shattuck,  19  Col.  104,  as  sustaining  the  views  ex- 
pressed in  this  opinion.  The  last  mentioned  case  was  a  special 
proceeding  under  a  statute  of  the  state  of  Colorado  praying  for 
the  dissolution  of  the  town  of  Valverde,  and  its  annexation  to  the 
city  of  Denver.  In  such  proceeding  the  county  court  made  an 
order  requiring  the  mayor  and  trustees  of  the  town  to  call  an  elec- 
tion for  the  purpose  of  determining  the  question  of  dissolution  and 
annexation;  this  order  required  the  question  to  be  submitted  to  a 
vote  of  the  qualified  electors  of  said  town  at  such  election.  The 
mayor  and  trustees  of  the  town  sought  to  vacate  the  order  on  the 
ground  of  the  unconstitutionality  of  the  statute  under  which  it 
was  obtained.    The  statute  required  that  the  question  of  dissolu- 


EANSOM  V.  BLACK.  49 

tion  and  annexation  be  submitted  "to  a  vote  of  such  of  the  quali- 
fied electors  of  such  town  or  city  (to  be  annexed)  as  have  in  the 
year  next  preceding  paid  a  property-tax  therein."  The  suffrage 
clause,  section  1  of  Article  7  of  the  constitution  of  the  state  of 
Colorado,  is  substantially  the  same  (in  so  far  as  it  involves  the 
question  under  consideration  in  this  case),  as  that  of  the  Maryland 
constitution.  Mr.  Justice  Elliott,  delivering  the  opinion  of  the 
court,  observes,  "It  is  manifest  that  some  restriction  must  be 
placed  upon  the  phrase  'all  elections'  as  used  in  section  1  (of  the 
constitution),  else  every  person  having  the  qualifications  therein 
prescribed  might  insist  upon  voting  at  every  election,  private  as 
well  as  public,  and  thus  interfere  with  the  affairs  of  others  in 
which  he  had  no  interest.  In  our  opinion,  the  word  'election'  thus 
used,  does  not  have  its  general  or  comprehensive  signification,  in- 
cluding all  acts  of  voting,  choice  or  selection,  without  limitation, 
but  is  used  in  a  more  restricted  political  sense,  as  elections  of  pub- 
lic officers." 

Without  extending  the  discussion  of  this  question  we  are  clearly 
of  opinion,  both  upon  reason  and  authority,  that  the  appellee's 
contention  is  not  sustained.  For  the  reason  stated,  the  order  of 
the  court  below  directing  the  writ  of  mandamus  to  issue  is  re- 
versed. 

Order  reversed  with  costs. 

The  counting  of  the  votes  of  unqualified  electors  will  not  invalidate 
the  election  unless  such  votes  affected  the  result  of  the  election.  People 
V.  Pease,  27  N.  Y.  45. 


2.    Power  of  the  Legislature  to  Regulate  the  Bight  to  Vote. 

RANSOM  V.  BLACK. 

Supreme  Court  of  New  Jersey.    June,  1892. 
54  N.  J.  L.  446. 

Heed,  J.  Section  63  of  the  new  election  act  reads  as  follows: 
"No  voter  shall  knowingly  vote,  or  offer  to  vote,  any  ballot  except 
an  official  ballot  enclosed  and  sealed  in  an  official  envelope,  as  by 
this  act  required.  Any  person  violating  this  provision  shall  incur 
a  penalty  of  $25.00  for  each  and  every  offense,  to  be  recovered  by 
an  action  of  tort  before  any  court  of  competent  jurisdiction  by 
4 


60  FORMATION  OF  THE  OFFICIAL  RELATION. 

any  person  who  shall  bona  fide  first  bring  suit."  The  defendant 
below  voted  a  ballot  printed  at  his  own  expense,  with  no  endorse- 
ment upon  the  back,  as  is  required  upon  official  ballots,  and  there- 
fore contravened  the  section  just  mentioned. 

This  is  admitted  by  the  prosecutor,  but  he  attacks  the  judgment 
by  challenging  the  validity  of  the  statute  prescribing  the  penalty. 

The  indictment  against  the  act  sets  out  a  number  of  particu- 
lars, in  which  it  is  charged  that  the  statute  is  in  conflict  with  the 
state  constitution. 

.  .  .  .  Nothing,  however,  is  established  more  unquestionably 
than  that  the  right  of  suffrage  is  not  an  absolute  right.  No  such 
right  exists,  unless  specifically  conferred  by  a  constitution  or  a 
statute.  It  is  a  political  right  and  does  not  flow  from  the  declara- 
tory clauses  of  the  Bill  of  Rights.  1  Story  Const.  580,  Cooley 
Const.  Lint.  599. 

The  question  then  is,  whether  any  of  the  features  of  the  statute 
illegally  obstructs  the  voter  in  exercising  the  right  which  is  ex- 
pressly conferred  upon  him. 

The  right  conferred  is  the  right  to  vote  for  all  elective  offices. 
As  to  when,  where  and  how  the  voting  is  to  take  place,  is  left  to 
the  legislature.  Without  the  intervention  of  the  legislature,  the 
privilege  conferred  by  the  constitution  would  be  fruitless.  A  wide 
field,  therefore,  is  left  open  for  the  exercise  of  legislative  discre- 
tion. The  days  upon  which  elections  are  to  be  held,  the  hours  of 
the  day  or  night  during  which,  or  between  which,  votes  shall  be 
received,  must  be  determined  by  the  legislature.  So,  too,  the  places 
where  each  election  is  to  be  held,  and  the  size  of  the  voting  pre- 
cinct, and  whether  the  size  shall  be  measured  by  territory  or  popu- 
lation, must  also  be  settled  by  direct  or  delegated  legislative  au- 
thority. The  widest  field  for  the  exercise  of  legislative  wisdom 
and  discussion  is  in  adjusting  the  method  by  which  the  sentiments 
of  the  voter  shall  be  obtained  and  canvassed.  The  constitution 
does  not  even  prescribe  that  the  voting  shall  be  done  by  ballot,  and, 
in  fact,  long  after  the  adoption  of  the  present  constitution,  town- 
ship elections  were  conducted  otherwise. 

In  adopting  a  scheme  for  these  purposes,  it  will  require  little 
thought  to  perceive  that  many  considerations  beside  that  of  the 
voter's  convenience  must  be  regarded.  The  problem  has  been,  and 
still  is,  how  to  gather  the  prevailing  sentiment  of  the  voting  body 
so  as  to  best  conserve  the  purposes  of  popular  government.  The 
objects  which  have  seemed  the  most  important  have  been  to  ex- 


RANSOM  V.   BLACK.  51 

elude  unqualified  persons  and  to  shield  the  legal  voter  from  the 
influences  of  coercion  and  corruption.  The  discovery  of  a  scheme 
of  voting  which  would  the  best  secure  these  objects,  has  long  been 
in  the  thoughts  of  statesmen  and  reformers.  The  ballot  itself  be- 
came the  method  of  registering  the  will  of  the  voter  in  Great 
Britain  only  after  a  long  period  of  agitation.  The  advantage  of 
a  system  of  secret  voting  was  stirred  by  the  Benthamites  as  early 
as  1817.  End.  Brit,  tit:  ''Ballot.''  In  1835  the  judges  of  the 
court  of  King's  Bench  doubted  whether  by  ballot  was  a  legal 
mode  of  holding  an  election  in  a  parish  to  fill  a  vacant  curacy, 
under  a  custom  that  the  parishioners  should  elect  a  successor  to  a 
deceased  curate.    Faulker  v.  Elger,  4  Barn.  &  C.  449. 

The  objection  of  the  judges  to  the  ballot  was  mainly  that  if  a 
person  voted  who  was  afterwards  ascertained  to  have  been  dis- 
qualified, there  was  no  way  of  telling  how  he  had  voted. 

After  years  of  discussion  the  ballot  was  adopted  in  local  elec- 
tions in  Manchester  and  Stafford  in  1869,  and  was  in  1872,  by  the 
passage  of  Mr.  Foster's  ballot  act  (55  and  56  Vict.  c.  33),  intro- 
duced in  all  parliamentary  and  municipal  elections,  except  parlia- 
mentary elections  for  universities. 

But  the  mere  use  of  the  ballot  has  been  shown  by  experience 
to  be  ineffectual  to  prevent  coercion  and  corruption.  The  factor 
of  supreme  importance  calculated  to  bring  about  this  result  is  an 
enforced  secrecy  respecting  the  choice  of  the  voter.  So  long  as  the 
ballot  can  be  marked  for  identification,  or  the  vote  of  the  citizen 
can  be  disclosed  in  any  way,  the  voter  is  liable  to  be  called  to  an 
account  for  his  conduct.  The  coercionist  will  treat  his  refusal  to 
vote  a  marked  ballot  as  an  adverse  vote.  The  corruptionist  will 
have  the  means  of  assuring  himself  that  the  vote  he  has  purchased 
will  be  delivered.  The  thoughts  of  those  interested  in  pure  elec- 
tions were  turned  by  these  considerations  to  the  device  of  some 
scheme  for  voting  which  would  secure  compulsory  secrecy,  and, 
at  the  same  time,  provide  for  an  orderly,  equal  and  convenient 
exercise  of  the  right  of  suffrage.  The  honor  of  first  devising  such 
a  plan  belongs  to  the  government  of  the  province  of  South  Aus- 
tralia. In  1856  a  constitution  was  adopted  by  that  colony  granting 
popular  representation  and  manhood  suffrage.  In  1857-8  the  elec- 
tion acts  were  passed,  which  typifies  the  system  which  has  spread 
to  two  other  continents  under  the  name  of  the  Australian  Ballot 
System.  The  practical  results  of  the  introduction  of  this  system 
is  shown  by  the  testimony  of  Sir  Robert  Richard  Totten,  who,  as 
a  member  of  the  government  of  South  Australia,  had  opposed  the 


62  FORMATION  OP  THE  OFFICIAL  RELATION. 

introduction  of  the  secret  ballot.  His  testimony,  however,  is  that 
rioting  and  disorder  had  disappeared.  Intimidation  by  landlords 
and  trades  unions  had  alike  disappeared  entirely,  and  the  very 
notion  of  coercion  or  improper  influences  had  died  out.  Wig- 
more's  Australian  Ballot. 

The  good  results  of  the  Australian  system  induced  the  passage 
of  the  act  of  1872  in  England,  already  mentioned,  which  is  based 
substantially  on  the  South  Australian  method.  Wherever  similar 
election  acts  have  been  put  in  operation,  the  sentiment  of  the 
community  has  been  generally  favorable.  While  they  do  not  ac- 
complish all  that  is  desirable  in  the  way  of  extirpating  corrupt 
practices,  their  effect  has  undoubtedly  been  to  secure  quieter  elec- 
tions, to  greatly  reduce  corruption,  and  almost  entirely  destroy 
coercive  influences. 

Now,  I  think,  this  recapitulation  of  the  purpose  and  results  of 
the  class  of  acts  of  which  our  own  is  a  specimen,  has  a  pertinency 
to  the  question  mooted  in  this  case,  for  I  think  any  provision  in 
such  an  act  which  is  likely  to  bring  about  a  result  which  conduces 
to  the  purity  of  popular  elections,  should  receive  a  favorable  con- 
sideration. It  is,  of  course,  true,  that  if  the  effect  of  any  pro- 
vision is  to  shut  off  a  voter  from  the  ballot  box,  such  provision 
must  fall  before  the  constitutional  guaranty  of  the  right  to  vote. 

But  in  measuring  cases  of  mere  inconvenience,  expense  or  sen- 
timent, the  existence  of  a  salutary  purpose  and  the  likelihood  of 
the  provision  tending  to  accomplish  that  purpose  must  weigh 
greatly  in  determining  the  reasonableness  of  the  statutory  regula- 
tion. 

With  these  remarks  let  us  look  to  the  several  points  made  against 
the  constitutionality  of  the  present  act. 

The  first  ground  of  complaint  is,  that  no  electioneering  is  per- 
mitted on  election  day  w^ithin  one  hundred  feet  of  any  polling 
place. 

The  regulation  is  a  proper  one  to  avoid  disturbance  and  disorder 
immediately  about  the  polls. 

The  second  point  of  attack  is  the  part  of  section  63  which  pro- 
hibits any  person  from  putting  a  mark  upon  the  face  or  back  of  a 
ballot  or  envelope  by  which  the  ballot  or  envelope  may  afterwards 
be  identified  by  any  other  person  as  the  one  voted  by  him;  and 
section  30,  which  provides,  that  if  any  ballot  shall  have  thereon 
any  mark,  sign,  designation  or  device  other  than  permitted  by  the 


RANSOM  V,   BLAOK.  53 

act,  whereby  the  said  ballot  may  be  identified  or  distinguished 
from  other  ballots  east  at  such  elections  such  ballot  shall  be  abso- 
lutely void.  The  point  made  against  these  provisions  of  the  act 
is,  that  the  voter  has  no  hand  in  the  preparation  of  the  ballot,  but 
that  a  mark  of  irregularity  may  get  on  the  ballot  in  its  prepara- 
tion which  might  prevent  its  being  counted.  It  is,  therefore,  ar- 
gued that  a  voter,  through  no  fault  of  his  own,  may  be  deprived  of 
his  vote.  This  criticism  is  grounded  upon  a  presumed  fraud  or 
neglect  of  duty  by  the  persons  upon  whom  the  duty  of  preparing 
the  ballots  is  imposed.  It  is,  of  course,  entirely  true,  that  it  is 
possible  for  a  vote  to  be  rejected  because  of  the  fraud  or  careless- 
ness of  such  person  or  persons.  But  the  same  remark  is  true  under 
any  scheme  which  may  be  devised.  Votes  have  been  suppressed, 
and  are  constantly  miscounted,  in  making  up  the  results  of  elec- 
tions. 

An  admission  of  the  soundness  of  the  present  criticism  would 
destroy  the  entire  scheme  of  securing  a  secret  ballot.  Secrecy  is 
impossible  without  uniformity  in  the  appearance  of  the  tickets 
and  envelopes.  That  uniformity  cannot  be  obtained  unless  the 
preparation  of  the  ballot  is  put  in  the  hands  of  some  specified 
person  or  persons.  The  guards  and  restrictions  placed  around  the 
preparations  of  the  ballots  are  of  the  most  explicit  and  stringent 
kind. 

The  law  presumes  that  these  prescriptions  of  duty  will  be  per- 
formed. It  never  presumes  a  neglect  of  official  duty.  I  can  per- 
ceive no  substance  in  the  objection  raised  against  this  feature  of 
the  act. 

The  third  and  fourth  grounds  of  attack  upon  the  act  may  be 
considered  together.  They  are  directed  against  the  provisions  of 
section  28,  providing  for  the  nomination  of  candidates  by  peti- 
tion, and  of  section  33,  regulating  the  printing  of  official  ballots. 

The  first  of  the  complaints  against  this  legislation  is  that  the 
voter  who  is  not  a  member  of  a  party  which  cast  five  percent  of 
the  entire  vote  cast  at  the  preceding  election  is  subjected  to  hard- 
ships from  which  the  other  voters  are  free.  To  apprehend  the 
force  of  this  complaint,  it  is  necessary  to  observe  that,  by  the 
terms  of  section  28,  any  political  party,  which  at  the  preceding 
election,  polled  not  less  than  five  per  cent  of  the  votes  cast  in  the 
election  district,  may  nominate  and  certify  the  names  of  candidates 
to  the  secretary  of  state  (in  case  they  are  state  officers),  or  to  the 
county  clerk  if  they  are  county  officers,  or  to  municipal  clerks  if 


54  FORMATION  OP  THE  OFFICIAL  RELATION. 

the  officers  are  municipal.  These  names  are  printed,  without  fur- 
ther party  action  or  expense,  upon  an  official  ballot.  But  voters 
who  are  members  of  a  party  which  cast  less  than  this  five  per  cent 
of  votes,  or  voters  who  desire  to  organize  a  new  party,  can  only 
obtain  an  official  ballot  by  a  petition.  This  petition  must  be  signed, 
in  case  of  a  state  officer,  by  qualified  voters  in  number  not  less 
than  one  per  cent,  of  the  votes  cast  at  the  preceding  election  for 
members  of  assembly ;  and  in  case  of  district,  county,  city  or  town- 
ship office,  by  not  less  than  five  per  cent  of  such  vote.  The  num- 
bers of  signers,  however,  need  not  exceed  two  hundred  altogether. 

It  is  insisted  that  the  labor  of  gathering  signatures  and  putting 
this  petition  into  legal  shape  thus  entailed  upon  a  class  of  voters, 
is  an  unconstitutional  discrimination  against  it  in  favor  of  the 
members  of  the  older  and  larger  parties. 

The  second  complaint  is,  that  there  is  further  discrimination 
in  printing  tickets.  By  directions  contained  in  section  33,  the 
county  or  municipal  clerk  is  to  provide  for  each  election  district 
two  hundred  and  fifty  ballots  for  every  fifty  or  fraction  thereof  of 
votes  cast  therein  by  such  party  at  the  last  preceding  election  for 
members  of  the  general  assembly,  except  in  case  of  nominations  by 
petition  by  any  party  that  cast  no  votes  for  any  candidate  or 
candidates  at  the  last  preceding  election  for  members  of  the  gen- 
eral assembly.  In  such  case  the  ballots  furnished  at  public  ex- 
pense shall  be  equal  in  numbers  to  one-half  of  the  total  number 
of  votes  cast  in  the  election  district  at  such  last  preceding  election. 

It  may  be  observed  in  passing,  that  this  provision  places  no 
obstacle  in  the  way  of  any  party  obtaining  all  the  ballots  it  may 
wish.  It  only  prescribes  what  number  of  said  ballots  shall  be 
printed  at  public  expense.  The  number  of  ballots  printed  for 
each  party  at  the  public  expense  bears  relation  to  the  number  of 
votes  of  that  party,  so  far  as  that  number  can  be  approximated 
by  the  result  of  the  preceding  election.  When  an  entirely  new 
party  puts  candidates  in  nomination,  this  method  of  calculation 
is  of  course  impracticable,  and  the  rule  adopted  seems  reasonable. 
It  may  give  to  the  new  party  more  or  less  ballots  than  to  some  of 
the  parties  entitled  to  make  nominations  by  convention. 

Now,  in  passing  upon  the  validity  of  both  of  these  provisions,  it 
is  to  be  noted  that  they  in  no  way  impede  the  voter  in  exercising 
his  right  to  vote  for  any  particular  person  or  persons  for  office. 
He  is  at  liberty  to  vote  for  any  person  by  simply  erasing  a  name 
from,  and  writing  the  name  of  the  favored  person  upon  any  of- 
ficial ballot.    It  is,  therefore,  apparent  that  the  right,  in  the  exer- 


RANSOM  V.  BLACK.  55 

cise  of  which  it  is  claimed  the  voter  is  embarrassed,  is  not  the  right 
to  vote,  but  the  right  to  form  a  party  and  vote  as  one  of  that  party. 
By  the  very  frame  of  the  complaint,  the  existence  of  parties  is 
recognized  as  a  part  of  the  practical  machinery  for  conducting 
elections. 

Now,  the  plan  of  providing  official  ballots,  which  plan  is  the  key- 
stone of  the  secret  ballot  system,  involves  necessarily  some  limita- 
tion upon  the  number  of  party  tickets  and  the  number  of  party 
candidates.  Of  all  the  acts  which  have  been  passed  to  bring  about 
this  system  of  voting,  I  am  sure  none  can  be  found  which  does 
not  in  some  way  circumscribe  the  privilege  of  demanding  a  place 
upon  the  official  ballot  as  a  party,  or  as  a  candidate  of  a  party. 
If  it  was  left  in  the  power  of  each  voter,  or  each  coterie  of  three 
voters,  to  adopt  a  party  name  and  demand  that  an  official  ballot 
should  be  printed  at  public  expense,  and  distributed  to  each  voter 
at  the  polls,  the  polls  would  probably  be  littered  with  ballots 
**  thick  as  autumnal  leaves  that  strew  the  brooks  in  Vallombrosa. " 
Great  expense,  labor  and  inconvenience  would  result,  without  any 
appreciable  benefit  to  the  voter  or  to  society.  These  regulations 
may  not  be  the  wisest  that  could  have  been  adopted,  still  they  are 
regulations  which  do  not  seriously  impair  the  right  of  any  citizen 
to  vote.  They  are  intended  to  restrict  the  number  of  party  tickets 
within  reasonable  limits,  while,  at  the  same  time,  permitting  any 
body  of  citizens  whose  number  is  sufficient  to  give  importance  to 
a  concerted  political  movement  to  organize  as  a  party. 

The  last  ground  of  complaint  which  I  shall  consider  is  the  fol- 
lowing :  That  a  voter  whose  sentiments  are  not  in  accord  with  the 
principles  of  any  party  having  an  official  ticket,  is  practically 
deprived  of  his  vote,  because  he  cannot  vote  unless  he  votes  a 
ticket  having  upon  it  the  name  of  a  party  of  whose  principles  he 
disapproves. 

.  .  .  .  I  have,  upon  reflection,  concluded  that  the  obstruction 
put  in  the  way  of  the  voter  is  sentimental  rather  than  substantial. 
We  must  view  the  question  in  a  practical  aspect.    .    .     . 

Many  features  of  the  act  may  offend  a  voter  of  sensitive  feelings 
and  peculiar  views.  Some  voters  have  sulked  and  refused  to  vote 
because  of  the  compelled  seclusion  in  preparing  the  ballot  and  like 
requirements.  But  these  exceptional  instances  cannot  create  a 
standard  of  what  should  be  regarded  as  an  unconstitutional  de- 
privation of  the  right  to  vote 


56  FORMATION  OF  THE  OFFICIAL  RELATION. 

I  am  of  the  opinion  that  no  legal  impediment  is  put  in  the  way 
of  the  voter  by  this  requirement. 

As  to  the  other  matters  discussed  at  the  argument,  it  is  enough 
to  say  that  we  find  no  material  criticism  of  the  provisions  of  the 
statute. 

The  judgment  must  be  affirmed. 

But  it  would  seem  that  the  legislature  may  not  In  its  desire  to  prevent 
the  marking  of  ballots  oblige  the  voter  to  vote  merely  for  the  candidates 
whose  names  are  on  the  official  ballot.  De  Walt  v.  Bartley,  146  Pa.  St. 
529;  Chateau  v.  Jacob,  88  Mich.  170;  Sanner  v.  Patton,  155  111.  553,  cf. 
State  V.  McElroy,  44  La.  Ann.  796. 


3.    Construction  of  Election  Regulations. 

BOYD  V.  MILLS. 

Supreme  Court  of  Kansas.    January,  1894. 
53  Kan.  594. 

Allen,  J.  This  is  an  original  proceeding  instituted  in  this 
court  by  0.  C.  Boyd  as  plaintiff,  to  try  the  right  to  the  office  of 
sheriff  of  Barber  county.  The  petition  shows  that  at  the  election 
held  on  the  7th  day  of  November,  1893,  according  to  the  official 
canvass  of  the  votes  cast,  the  plaintiff  received  508  and  the  de- 
fendant 516  votes.  The  plaintiff  alleges  that  many  illegal  votes 
were  cast  and  counted  for  the  defendant,  and  that  the  plaintiff 
received  a  majority  of  the  legal  votes. 

It  is  conceded  that  all  of  the  ballots  used  in  Deerhead  township 
were  of  the  same  color,  and  the  sole  question  with  reference  to 
their  legality  arises  from  the  color  of  the  paper.  It  is  contended 
on  behalf  of  the  plaintiff  that  the  statute  is  mandatory,  and  that 
no  ballot  can  be  counted  unless  it  conforms  strictly  to  the  require- 
ments of  the  law;  that  a  court  is  not  at  liberty,  by  construction, 
to  do  away  with  any  of  its  requirements.  In  this  contention,  we 
think  the  counsel  for  the  plaintiff  is  in  the  main  correct,  and  that 
the  wholesome  provisions  of  the  law  are  neither  to  be  disregarded 
nor  construed  away. 

That  the  ballots  in  fact  used  were  printed  and  furnished  by 


BOYD  V.  MILLS.  57 

the  county  clerk,  and  were  in  all  respects  the  same  as  the  official 
ballots,  excepting  the  color  of  the  paper,  is  conceded,  and  it  is  also 
conceded  that  the  ballots  used  in  the  one  township  were  uniform 
in  color.  Does  this  fact  operate  to  render  the  election  at  that 
voting  precinct  a  nullity?  In  considering  the  statute,  we  are  to 
keep  steadily  in  mind  the  evident  purpose  of  the  legislature  in  its 
enactment.  It  is  plain  that  among  the  most  prominent  ends  sought 
to  be  attained  was  that  of  absolute  secrecy.  Any  mark  or  distin- 
guishing feature  on  the  ballots  which  would  enable  a  person  other 
than  the  voter  himself  to  identify  the  ballot,  and  find  out  how  the 
elector  voted,  was  intended  to  be  strictly  prohibited. 

The  case  of  the  People  ex  rel.  v.  Board  of  Canvassers,  129  N.  Y. 
395,  is  relied  on.  The  statute  of  New  York  differs  materially  from 
our  own.  The  law  requires  that  "on  the  back  of  each  ballot  shall 
be  printed  in  type  known  as  great  primer  Roman  condensed  cap- 
itals the  indorsement,  'official  ballot  for,'  and  after  the  word  'for' 
shall  follow  the  designation  of  the  polling  place  for  which  the  bal- 
lot is  prepared,  the  date  of  the  election,  and  a  facsimile  of  the  sig- 
nature of  the  county  clerk;  the  ballot  shall  contain  no  caption  or 
other  indorsement  except  as  in  this  section  provided."  In  distrib- 
uting the  ballots,  those  printed  for  the  republican  party  were 
transposed  so  that  the  votes  indorsed  with  the  number  of  the  first 
district  in  certain  towns  were  sent  to  the  second,  and  those  with 
the  second  to  the  first,  and  such  transpositions  occurred  in  four 
towns  and  in  nine  election  precincts.  The  twenty-ninth  section  of 
the  New  York  act  provided : 

"No  inspector  of  election  shall  deposit  in  the  ballot  box  on 
election  day  any  ballot  which  is  not  properly  endorsed  and  num- 
bered, except  in  the  cases  provided  for  in  section  21  of  this  act, 
nor  shall  any  inspector  of  election  deposit  in  the  ballot  box  or 
permit  any  other  person  to  deposit  therein  on  election  day  any 
Ballot  that  is  torn^  or  that  has  any  other  distinguishing  mark  on 
the  outside  thereof.^' 

It  seems  that  separate  tickets  are  printed  there  for  each  political 
party,  instead  of  printing  all  the  names  on  one  ballot.  In  decid- 
ing the  case  court  lays  much  stress  on  the  fact  that  the  republican 
ballots,  being  indorsed  with  the  wrong  number,  had  distinguishing 
marks  by  which  they  could  be  identified,  and  that  the  secrecy  of 
the  ballot  was  thereby  destroyed,  and  also  on  the  positive  require- 
ments of  the  law,  that  no  ballot  should  be  deposited  unless  prop- 
erly indorsed  and  numbered.  In  the  case  of  The  State  v.  McKin- 
non,  8  Ore.  493,  a  ballot  was  rejected  written  on  colored  paper, 


58  FORMATION  OP  THE  OFFICIAL  RELATION. 

the  law  requiring  it  to  be  on  plain  white  paper.  We  should  have 
no  hesitancy  in  saying  that  a  single  ballot  printed  on  colored  paper, 
where  the  official  ballots  printed  on  white  paper  were  being  used 
by  other  electors,  could  not  be  counted.  In  that  case  it  would  be 
plain  that  the  object  of  the  law  was  contravened. 

We  have  examined  the  numerous  cases  cited  by  counsel  for  the 
plaintiff,  and  from  them  deduce  two  rules,  which  seem  to  be  stead- 
ily adhered  to  by  the  courts:  (1)  That,  under  laws  similar  to  our 
own,  designed  to  preserve  the  secrecy  of  the  ballot,  any  mark  or 
distinguishing  feature  apparent  on  the  ballot  renders  it  void.  (2) 
Where  the  law  is  explicit  in  prohibiting  the  counting  of  any  ballot 
which  does  not  conform  to  the  requirements  ,of  the  statutes,  that 
the  courts  will  enforce  the  law  as  it  reads,  without  interposing 
their  own  judgment  as  to  the  reasonableness  or  unreasonableness 
of  the  requirements. 

It  will  be  observed  that  the  law  nowhere  explicitly  provides  that 
a  ballot  printed  on  paper  of  a  color  other  than  white  shall  not  be 
counted.  The  only  clause  which  could  be  held  to  imply  such  a  pro- 
vision is,  that  "none  but  ballots  provided  in  accordance  with  the 
provisions  of  this  act  shall  be  counted. ' '  Among  the  requirements 
of  the  act,  which  are  very  minute,  is  one  that  the  official  ballots 
shall  be  put  up  in  separate  lots,  packages  of  50  ballots  each,  with 
certain  marks  on  the  outside.  Will  it  be  contended  that  an  error 
in  counting  the  ballots  within  any  package,  or  in  marking  or  ad- 
dressing the  packages  intended  for  any  person,  would  vitiate  the 
election?  The  departure  from  the  law  in  matters  which  the  legis- 
lature has  not  declared  of  vital  importance  must  be  substantial, 
in  order  to  vitiate  the  ballots.  This  appears  to  be  the  general  cur- 
rent of  all  the  authorities. 

Without  proceeding  to  review  at  greater  length  the  authorities 
cited  by  counsel  on  both  sides  of  the  question,  we  conclude  that 
the  mere  fact  that  the  paper  on  which  all  the  ballots  used  in  one 
election  district  was  of  a  color  other  than  white,  where  the  ballots 
were  not  only  printed  by  the  authorities  designated  by  law,  and 
by  them  furnished  to  the  judges  of  election,  but  were  furnished 
by  the  judges  to  the  voters,  and  were  the  only  ballots  furnished 
to  or  used  by  any  voter  at  that  voting  place,  is  not  sufficient  to 
prevent  the  counting  of  the  votes.  The  secrecy  of  the  ballot  has 
been  in  no  wise  impaired;  the  voters  themselves  have  manifested 
no  disposition  to  disregard  the  law,  and  it  may  be  fairly  inferred 
that  the  use  of  the  colored  ballots  was  an  honest  mistake  on  the 


PAGE   V.   KUYKENDALL.  59 

part  of  the  judges  of  the  election.  Had  a  part  of  the  ballots  been 
white  and  a  part  colored,  so  as  to  afford  some  grounds  for  identifi- 
cation of  the  votes  cast  by  the  individual  voters,  a  different  ques- 
tion would  be  presented.  We  reach  the  conclusion  that  the  law 
has  not  been  substantially  infringed,  because  we  are  unable  to  see 
how  the  purposes  of  the  act  can  have  been  impaired  in  any  degree 
by  the  mistake  made  in  using  the  colored  ballots.  By  this  decision 
we  do  not  intend  to  say  that  any  of  the  provisions  of  the  law  may 
be  disregarded,  or  that  any  officer  may  escape  liability  to  punish- 
ment for  violating  any  of  its  provisions 

All  the  Justices  concurring. 

As   to   what   marks    will    invalidate    ballots   as    affording   means    of 
identification  see  monographic  note  in  49  American  State  Reports,  240. 


PAGE  V.  KUYKENDALL. 

Supreme  Court  of  Illinois.    May,  1896. 
161  III.  319. 

Mr.  Justice  Carter  delivered  the  opinion  of  the  court. 

Of  the  sixty-three  ballots  contained  in  the  record  as  having 
been  cast  at  the  election  in  question  for  school  directors  all  were 
rejected  by  the  trial  court  in  the  contest  proceeding  but  nine,  and 
these  nine  being  for  the  contestants,  the  contestants  were  declared 
elected.  The  appeal  is  prosecuted  by  Page  alone.  "We  are  there- 
fore to  consider  only  whether  Page  or  Kuykendall  received  the 
greater  number  of  votes  cast  for  the  office  in  question  at  said 
election. 

The  thirty-one  ballots  containing  nothing  but  the  two  names, 
thus,  "S.  Page,  W.  D.  Rollings,"  and  two  others  similar  in  form, 
were  clearly  insufficient  to  express  the  intention  of  the  voter. 
Appellant  contends  that  as  the  only  office  to  be  filled  at  this  elec- 
tion was  school  director  it  was  not  necessary  that  the  office  should 
^be  designated  on  the  ballot  to  make  the  intention  of  the  voter  clear. 
It  is  plain,  however,  that  if  this  contention  were  conceded,  not- 
withstanding the  statute  requires  such  designation,  it  is  still  wholly 
uncertain  which  of  the  two  persons  whose  names  are  on  the  ballot 
the  elector  intended  to  vote  for  for  the  long  term  and  which  for 
the  short  term.  This  choice  could  be  determined  only  by  the  voter 
himself  as  expressed  by  his  ballot,  and  when  the  ballot  wholly  fails 


60  FORMATION  OP  TH^  OFFICIAL  RELATION. 

to  express  the  choice  it  is  void  and  cannot  be  counted.  Chamber- 
lain V.  Hartley,  25  Atl.  Rep.  (Pa.)  572;  GUliland's  Appeal,  96 
Pa.  St.  224. 

There  were  eleven  of  the  rejected  ballots  which  contained  the 
title  of  the  office  above  the  names,  but  were  equally  as  uncertain 
as  those  above  mentioned  and  in  the  same  respect.  We  are  of 
opinion  that  the  county  court  did  not  err  in  refusing  to  count 
these  ballots. 

There  were,  however,  ten  other  ballots  rejected  by  the  court 
concerning  which  a  more  serious  question  arises. 

Counsel  for  appellee  insist  that  these  ten  ballots  also  are  fatally 
defective  because  the  title  to  the  office  is  not  designated  on  them, 
and  because,  as  they  contain  two  names,  it  is  impossible  to  ascer- 
tain the  intention  of  the  voter  as  to  whether  he  intended  to  vote 
for  both  for  the  long  term  or  not,  or  what  his  intention  really  was. 
It  is  plain  that  where  there  are  more  offices  than  one  to  be  voted 
for,  ballots  making  no  designation  of  the  office  will  be  insufficient 
for  uncertainty,  and  where  there  are  two  officers  to  be  elected  for 
different  terms,  ballots  which  do  not  designate  the  terms  should 
be  rejected.  6  Am.  &  Eng.  Ency.  of  Law  345,  It  is,  however, 
the  general  rule  that  the  voter  shall  not  be  disfranchised  or  de- 
prived of  his  right  to  vote  through  mere  inadvertence,  mistake  or 
ignorance,  if  an  honest  intention  can  be  ascertained  from  his  ballot 
Parker  v.  Orr,  158  111.  609,  and  the  circumstances  surrounding 
the  election  may  be  considered  in  ascertaining  the  voter's  intention 
or  to  explain  imperfections  in  the  ballots,  Behrensmeyer  v.  Kreitz, 
135  111.  591 ;  McKinnon  v.  People,  110  id.  305.  This  election  was 
only  for  school  directors.  It  was  ordered  for  that  purpose  alone. 
This  is  fully  shown  by  the  pleadings  and  the  evidence,  and  it  can- 
not be  said,  we  think,  that  there  is  any  uncertainty  as  to  these 
ten  ballots  having  been  cast  for  school  directors,  or  at  least  for  a 
school  director.  Besides,  it  is  apparent  from  the  ballots  them- 
selves that  there  was  an  attempt  on  the  part  of  the  voter  to  comply 
with  the  statute  and  to  designate  the  office,  for,  after  the  name 
of  S.  Page,  and  on  the  same  line,  are  written  the  words,  "long 
term. ' '  The  only  officers  to  be  elected  were  two  school  directors, — 
one  for  the  long  or  full  term  of  three  years,  and  one  for  the  short 
term,  to  fill  the  vacancy.  Had  there  been  no  other  name  on  these 
ballots  than  that  of  Page,  we  think  no  doubt  could  arise  that 
it  was  the  intention  of  the  voters  casting  these  ballots  to  vote  for 
Page  for  the  office  of  school  director  for  the  full  term.    We  think. 


PAGE   V.   KUrKENDALL.  61 

also,  that  there  being  no  candidate  to  be  voted  for  at  this  election 
for  any  office  other  than  that  of  school  directors,  the  attempted  and 
partial  designation  of  the  office  on  these  ballots  as  to  Page  was 
under  the  circumstances,  a  sufficient  compliance  with  the  statute 
requiring  the  title  of  the  office  to  be  written  or  printed  on  the 
ballot,  and  that  the  office  to  which  the  voter  desires  each  candidate 
voted  for  to  be  elected  shall  be  designated  on  the  ballot.  6  Am.  & 
Eng.  Ency.  of  Law,  344,  note  1. 

It  is  claimed,  however,  that  as  these  ten  ballots  also  contain  the 
name  of  W.  D.  Rollings,  without  any  designation  of  the  office  to 
which  the  voters  desired  him  to  be  elected  to,  other  than  that  which 
followed  the  name  of  Page,  the  ballots  should  not,  under  the  stat- 
ute, be  counted  for  either  candidate.  Section  58  of  the  statute 
provides:  *'If  more  persons  are  designated  for  any  office  than 
there  are  candidates  to  be  elected  .  .  .  such  part  of  the  ticket 
shall  not  be  counted  for  either  of  the  candidates."  In  the  case 
of  Blankinship  v.  Israel,  132  111.  514,  there  was  but  one  office  and 
one  term  to  be  filled  and  two  names  were  preceded  by  the  words 
*  *  For  assessor, ' '  and  this  court  held  that  the  ballot  should  not,  un- 
der the  statute,  be  counted  for  either  candidate.  But  it  cannot  be 
said  here  the  ten  ballots  in  dispute  have  more  names  designated 
for  any  office  than  there  are  candidates  to  be  elected.  The  office 
is  that  of  school  director.  Two  candidates  were  to  be  elected, — 
one  for  the  long  and  one  for  the  short  terra.  It  is  clear  these 
electors  intended  to  vote  for  Page  for  the  long  term,  and  it  may 
be  and  probably  was  intended  that  the  one  year  term  should  apply 
to  Rollings,  but  the  ballots  failed  to  make  the  designation.  As 
Rollings'  case  is  not  before  us  it  is  unnecessary  to  construe  these 
ballots  as  to  him,  any  further  than  the  effect  they  may  have  upon 
the  rights  of  Page.  It  cannot  be  said,  in  view  of  the  form  of  these 
ballots  and  of  the  fact  that  two  officers  were  to  be  elected,  that 
the  words  **long  term"  had  the  same  relation  to  the  name  of  Rol- 
lings as  to  the  name  of  Page,  as  did  the  title  "For  assessor"  in 
Blankinship  v.  Israel,  supra,  in  respect  to  the  two  names  in  ques- 
tion in  that  case.  In  the  case  at  bar  there  was  simply  a  failure  to 
designate  any  office  to  which  these  electors  desired  Rollings  to  be 
elected,  unless,  by  the  designation  of  Page  for  the  long  term,  it 
might  be  implied  that  the  voter  intended  to  vote  for  Rollings  for 
the  short  term, — the  only  remaining  place  to  be  filled;  and  the 
latter  view  should  be  adopted  rather  than  the  one  that  he  intended 
to  vote  for  both  for  the  long  term, — if  it  were  necessary,  in  the 
decision  of  the  case,  to  adopt  either  view.     A  construction  will 


62  FORMATION  OP  THE  OFFICIAL  RELATION. 

not  be  adopted  which  would  deprive  the  elector  of  his  vote  when 
his  ballot  is  equally  susceptible  of  another  construction  which  will 
give  it  effect.  Our  conclusion  is  that  these  ten  ballots  should 
have  been  counted  for  Page,  and  that  the  county  court  erred  in 
rejecting  them,  and  in  declaring  that  Kuykendall,  and  not  Page 
was  entitled  to  the  oflSce. 

The  judgment  of  the  county  court  is  reversed  and  the  case  re- 
manded, with  directions  to  dismiss  the  petition  as  against  Page, 
at  the  cost  of  appellee,  Kuykendall. 

Reversed  and  remanded. 


4.    Powers  of  Boards  of  Canvassers. 

PEOPLE  V.  VAN  CLEVB. 

Supreme  Court  of  Michigan,    January,  1850. 
1  Mich.  362. 

By  the  court,  Mundy,  J. 

The  very  ingenious  argument  of  the  attorney  general  seems  to 
me  to  be  based  upon  the  supposition  that  the  determination  of  the 
board  [of  canvassers]  was  somewhat  in  the  nature  of  a  judgment 
at  law,  binding  and  conclusive,  and  that  it  afforded  the  only  evi- 
dence of  the  rights  of  the  contestants  for  this  office ;  for,  from  the 
information,  it  appears  that  Elias  M.  Skinner  clafms  title  thereto; 
and  that  such  judgment  must  be  based  and  appear  to  be  based 
upon  this  statement  as  the  finding  of  the  board,  as  a  judgment 
at  law  is  rendered  upon  the  finding  of  the  jury.  But  no  such  con- 
clusive effect  is  given  by  the  statute  to  this  determination  of  the 
board,  nor  to  the  statement  of  the  board,  upon  which  it  may 
properly  be  said  to  be  founded. 

The  whole  scope  of  the  statute  seems  to  show  that  this  statement 
is  but  prima  facie  evidence;  that  in  every  contested  election  you 
may  go  behind  it;  the  county  canvass  may  be  corrected  by  the 
township  canvassers;  and  that  these  may  be  corrected  by  the  bal- 
lots themselves.  A  contested  election  is  not  to  be  decided  by  what 
does  or  does  not  appear  in  any  of  these  statements. 


PEOPLE   V.   VAN    CLEVE.  63 

The  provisions  of  the  statute  show  that  you  may  go  behind  all 
these  proceedings — that  you  may  go  to  the  ballots,  if  not  beyond 
them,  in  search  of  proof  of  the  due  election  of  either  person,  the 
one  holding,  or  the  one  claiming  the  office.  And  this  is  as  it  should 
be.  In  a  republican  government,  where  the  exercise  of  official 
power  is  but  a  derivative  from  the  people,  through  the  medium  of 
the  ballot-box,  it  would  be  a  monstrous  doctrine  that  would  subject 
the  public  will  and  the  public  voice,  thus  expressed,  to  be  defeated 
by  either  the  ignorance  or  corruption  of  any  board  of  canvassers. 

The  duties  of  these  boards  are  simply  ministerial:  Their  whole 
duty  consists  in  ascertaining  who  are  elected,  and  in  authenticating 
and  preserving  the  evidence  of  such  election.  It  surely  cannot  be 
maintained  that  their  omissions  or  mistakes  are  to  have  a  control- 
ling influence  upon  the  election  itself.  It  is  true  that  their  cer- 
tificate is  the  authority  upon  which  the  person  who  receives  it 
enters  upon  the  office,  and  it  is  to  him  prima  facie  evidence  of  his 
title  thereto ;  but  it  is  only  prima  facie  evidence. 

The  view  which  I  have  taken  of  the  effect  of  the  statement  of 
the  county  board,  is  fully  sustained  by  the  opinion  of  the  su- 
preme court  of  the  state  of  New  York,  in  the  cases  of  the  People 
V.  Ferguson,  8  Cowen  102 ;  and  the  People  v.  Vail,  20  Wendell  14. 

In  the  case  of  the  People  v.  Ferguson,  it  was  held,  notwithstand- 
ing the  determination  of  the  canvassers  in  favor  of  the  defendant, 
that  the  court  and  jury  could  look  even  beyond  the  ballot  boxes, 
and  inquire  whether  the  votes  given  for  H.  F.  Yates,  were  not 
intended  by  the  voters  for  Henry  F.  Yates.  In  the  case  of  the 
People  V.  Vail,  Justice  Bronson,  delivering  the  opinion  of  the 
court,  said:  "The  decision  of  the  canvassers  was  conclusive  in 
every  form  in  which  the  question  could  arise,  except  of  that  of  a 
direct  proceeding  by  quo  warranto,  to  try  the  right.  But  to  hold 
it  conclusive  in  this  proceeding,  would  be  nothing  less  than  saying, 
that  the  wiU  of  the  electors,  plainly  expressed  in  the  forms  pre- 
scribed by  law,  may  be  utterly  defeated  by  the  negligence,  mistake, 
or  fraud  of  those  who  are  appointed  to  register  the  results  of  an 
election. ' ' 

The  demurrer  must  be  overruled,  with  leave  for  the  attorney 

general  to  reply. 

Demurrer  overruled. 


64  FORMATION  OP  THE  OFFICIAL  RELATION. 

HADLEY  V.  THE  MAYOR. 

Court  of  Appeals  of  New  York.    September,  1865. 
33  N.  Y.  603. 

Denio,  Ch.  J.  There  being  no  conclusion  of  fact  found  by  the 
judge,  the  only  questions  which  are  open  for  examination  upon 
this  appeal  are  those  which  arise  upon  the  exceptions  to  rulings 
taken  in  the  course  of  the  trial. 

The  election  for  mayor  and  other  officers  in  1856  was  held  on 
the  day  appointed  by  law,  the  second  Tuesday  (8th  day)  of  April, 
and  the  terms  of  the  newly  chosen  officers  commenced  on  the  first 
Tuesday  of  May  thereafter.  (Laws,  1855,  ch.  196,  sections,  1,  2, 
3.)  The  law  requires  the  inspectors  of  election  to  file  a  statement 
and  certificate,  setting  forth  the  number  of  votes  given  for  each 
person  for  each  respective  office,  with  the  clerk  of  the  common 
council,  within  twenty-four  hours  after  the  completion  of  the 
canvass,  and  that  "the  common  council,  at  its  meeting  thereafter, 
shall  canvass  such  returns,  and  determine  and  declare  the  result." 
(Laws,  1855,  ch.  86,  section  11.)  The  officers  chosen  are,  on  or 
before  the  time  when  their  terms  commence,  to  take  the  oath  of 
office  prescribed  by  law.  (id.,  section  12.)  The  plaintiff  had 
given  in  evidence  a  certificate  of  the  determination  of  the  common 
council  at  a  meeting  held  on  the  15th  April,  one  week  after  the 
election.  This  was  at  least  prima  facie  evidence  of  the  act  of  the 
common  council.  The  document  was  given  in  evidence  without  ob- 
jection, and  it  was  not  attempted  to  controvert  the  fact  that  the 
proceedings  of  the  council  set  forth  in  it  had  taken  place  as  stated. 
But  the  defendant  offered  to  prove  another  canvass  before  the 
common  council,  at  a  meeting  on  the  6th  May  following.     .        .     . 

The  evidence  was  excluded,  and  this  is  the  point  of  the  first  ex- 
ception. The  act  does  not  prescribe  that  the  canvass  shall  be  made 
at  the  first  meeting  of  the  council  after  the  election,  a  word  having 
apparently  dropped  out  in  transcribing  or  in  printing  the  section. 
The  meaning,  as  it  stands  in  the  statute  book,  is,  that  the  canvass 
shall  be  made  at  some  meeting  of  the  common  council  after  the 
election.  It  was  regular  and  legal  to  perform  that  duty  at  the 
first  meeting,  and  this  was  what  was  done,  as  stated  in  the  certifi- 
cate. Having  once  been  legally  performed,  the  power  of  the  coun- 
cil was  exhausted.  The  board  had  no  right  to  reverse  its  decision 
by  making  a  different  determination.  The  court  was  therefore 
right  in  rejecting  the  evidence  which  was  offered. 


LEWIS  V.  COMMISSIONERS.  65 

The  second  exception  was  to  tjbe  decision  by  which  the  court 
excluded  the  inspector's  returns.  The  object,  I  suppose,  was  to 
show  that  the  returns  elected  Mr.  Quackenbush  and  not  Mr.  Perry. 
But  the  law  having  committed  to  the  common  council  the  duty  of 
canvassing  the  returns  and  determining  the  result  of  the  election 
from  them,  and  the  council  having  performed  that  duty  and  made 
a  determination,  the  question  as  to  the  effect  of  the  returns  was 
not  open  for  a  determination  by  the  jury  in  an  action  in  which 
the  title  of  the  officer  came  up  collaterally.  If  the  question  had 
arisen  upon  an  action  in  the  nature  of  a  quo  warranto  information, 
the  evidence  would  have  been  competent.  But  it  would  be  intol- 
erable to  allow  a  party  affected  by  the  acts  of  a  person  claiming  to 
be  an  officer,  to  go  behind  the  official  determination  to  prove  that 
such  official  determination  arose  out  of  mistake  or  fraud. 

The  defendants'  counsel  seems  to  have  chosen  to 

place  their  defense  upon  the  allegation  of  title  in  Mr.  Quackenbush 
to  the  office  of  mayor,  and  they  raised  no  question  except  that 
which  related  to  the  evidence  of  his  election  and  the  validity  of 
his  acts.  Having  failed  to  sustain  their  position  on  these  ques- 
tions, they  cannot  ask  to  have  judgment  against  them  reversed. 

All  the  judges  concurred  in  affirming  the  judgment  except 
Porter,  J.,  who  did  not  sit,  having  been  counsel. 


LEWIS  V.  COMMISSIONERS. 

Supreme  Court  of  Kansas.    January,  1876. 
16  Kan.  102. 

Brewer,  J.  This  is  an  action  of  mandamus,  to  compel  a  correct 
canvass  of  the  votes  cast  in  the  county  of  Marshall  for  the  office 
of  county  clerk.  Upon  the  canvass  that  was  made  the  canvassers 
rejected  the  returns  from  "Waterville  township,  and  declared  one 
J.  G.  Mclntire  elected.  If  those  returns  had  been  counted,  the 
plaintiff  would  have  received  a  majority,  and  been  declared  elected. 
Three  questions  are  presented :  First,  will  the  court,  after  a  can- 
vassing board  has  made  one  canvass,  declared  the  result,  and  ad- 
journed, compel  it,  by  mandamus,  to  reassemble  and  make  a 
correct  canvass  on  the  ground  that  at  the  prior  canvass  it  had 
improperly  omitted  to  canvass  all  the  returns?  Second,  if  the 
b 


66  FORMATION  OF  THE  OFFICIAL  RELATION. 

returns  are  regular  in  form,  and  genuine,  may  the  canvassing 
board  reject  and  refuse  to  canvass  them  on  the  ground  that  during 
the  election  fraudulent  votes  were  received,  and  other  irregulari- 
ties practiced  by  the  judges  and  clerks  of  the  election?  And  third, 
will  the  fact  that,  after  the  pollbooks  and  tallysheets  have  been 
properly  prepared  and  signed,  and  before  their  delivery  to  the 
township  trustee  and  county  clerk,  they  are  tampered  with  and 
changed  by  outside  parties,  so  far  as  respects  the  votes  for  candi- 
date for  a  single  ofiSce,  justify  the  canvassing  board  in  rejecting 
the  entire  returns,  and  in  refusing  to  count  the  votes  cast  for 
candidates  for  the  other  offices? 

The  first  question  must  be  answered  in  the  affirmative,  and  the 
other  two  in  the  negative. 

It  is  the  duty  of  the  canvassers  to  canvass  all  the  returns,  and 
they  as  truly  fail  to  discharge  this  duty  by  canvassing  only  a  part, 
and  refusing  to  canvass  the  others,  as  by  refusing  to  canvass 
any.  And  it  is  settled  by  abundant  authority,  that  where  the 
board  refuses  to  canvass  any  of  the  votes  it  may  be  compelled  so 
to  do  by  mandamus,  and  this  though  the  board  has  adjourned  sine 
die.  Hagerty  v.  Arnold,  13  Kan.  367,  is  a  case  in  point.  The  can- 
vass is  a  ministerial  act,  and  part  performance  is  no  more  a  dis- 
charge of  the  duty  enjoined  than  no  performance.  And  a  candidate 
has  as  much  right  to  insist  upon  a  canvass  of  all  the  returns,  as 
he  has  of  any  part,  and  may  be  prejudiced  as  much  by  a  partial 
as  by  a  total  failure.  The  adjournment  of  the  board  does  not 
deprive  the  court  of  the  power  to  compel  it  to  act,  any  more  than 
the  adjournment  of  a  term  of  the  district  court  would  prevent 
this  court  from  compelling  by  mandamus  the  signing  of  a  bill  of 
exceptions  by  the  judge  of  that  court,  which  has  been  tendered  to 
him  before  the  adjournment.  As  a  general  rule,  when  a  duty  is 
at  the  proper  time  asked  to  be  done,  and  improperly  refused  to  be 
done,  the  right  to  compel  it  to  be  done  is  fixed,  and  is  not  de- 
stroyed by  the  lapse  of  time  within  which  in  the  first  place  the 
duty  ought  to  have  been  done. 

As  to  the  other  two  questions,  it  is  a  common  error  for  a  can- 
vassing board  to  overestimate  its  powers.  Whenever  it  is  suggested 
that  illegal  votes  have  been  received ,  or  that  there  were  other 
fraudulent  conduct  and  practices  at  the  election,  it  is  apt  to  imag- 
ine that  it  is  its  duty  to  inquire  into  those  alleged  frauds,  and  de- 
cide upon  the  legality  of  the  votes.  But  this  is  a  mistake.  Its  duty 
is  almost  wholly  ministerial.    It  is  to  take  the  returns  as  made  to 


PEOPLE  EX  REL.  PURMAN  V.  CLUTE.  67 

them  from  the  different  voting  precincts,  add  them  up,  and  de- 
clare the  result.  Questions  of  illegal  voting  and  fraudulent  prac- 
tices, are  to  be  passed  upon  by  another  tribunal.  The  canvassers 
are  to  be  satisfied  of  the  genuineness  of  the  returns,  that  is,  that 
the  paper  presented  to  them  are  not  forged  and  spurious;  that 
they  are  returns,  and  are  signed  by  the  proper  officers;  but  when 
so  satisfied,  they  may  not  reject  any  returns  because  of  the  in- 
formalities in  them,  or  because  of  illegal  and  fraudulent  practices 
in  the  election.  The  simple  duty  and  the  purpose  of  the  canvass- 
ing board  is  to  ascertain  and  declare  the  apparent  result  of  thg 
voting.  All  other  questions  are  to  be  tried  before  the  court  for 
contesting  elections,  or  in  quo  warranto  proceedings.  It  must  be 
borne  in  mind  that  the  change  in  the  returns  in  this  case  was  made 
after  their  execution  by  the  proper  officers,  and  before  they  reached 
the  county  clerk's  desk,  was  made  by  unauthorized  and  outside 
parties,  and  not  by  the  election  officers,  and  did  not  affect  the 
number  of  votes  cast  and  returned  for  this  plaintiff,  or  his  oppon- 
ent. Under  those  circumstances,  we  think  the  commissioners  were 
not  justified  in  refusing  to  canvass  the  returns  from  Waterville 
township,  so  far  at  least  as  respects  the  officers  other  than  the  one 
concerning  which  the  tampering  with  and  changing  of  the  votes 
was  had. 

The  peremptory  writ  must  be  awarded  as  prayed  for. 

All  the  justices  concurring. 

But  mandamus  will  not  issue  to  a  state  board  of  canvassers  if  the 
Governor  is  a  member  of  it.  Dennett  petitioner,  32  Me.  508,  cf.  People 
V.  Morton,  156  N.  Y.  136. 


5.    What  Constitutes  an  Election.^ 

PEOPLE  EX  REL.  FURMAN  V.  CLUTE. 

Court  of  Appeals  of  New  York.    December,  1872. 
50  N.  Y.  451. 

FOLGER,  J. 

The  second  question  to  be  considered  is  whether  Furman,  the 
relator,  was,  at  the  general  election  of  1871,  duly  elected  to  the 

'An  election  to  have  any  legal  effect  must  be  a  regular  one  held  by 
the  proper  officers  in  accordance  with  the  law.  State  v.  Taylor,  108 
N.  C.  196,  infra. 


68  FORMATION  OP  THE  OFFICIAL  RELATION. 

office.  Neither  a  majority  nor  a  plurality  of  all  the  ballots  found 
in  the  boxes  were  for  him.    He  had  but  a  minority  of  them. 

It  is  the  theory  and  general  practice  of  our  government  that 
the  candidate  who  has  but  a  minority  of  the  legal  votes  cast  does 
not  become  a  duly  elected  officer.  But  it  is  also  the  theory  and 
practice  of  our  government,  that  a  minority  of  the  whole  body  of 
qualified  voters  may  elect  to  an  office,  when  a  majority  of  that 
body  refuse  or  decline  to  vote  for  anyone  for  that  office.  Those  of 
them  who  are  absent  from  the  polls,  in  theory  and  practical  result, 
are  assumed  to  assent  to  the  action  of  those  who  go  on  to  the  polls ; 
and  those  who  go  to  the  polls  and  who  do  not  vote  for  any  candi- 
date for  office,  are  bound  by  the  result  of  the  action  of  those  who 
do;  and  those  who  go  to  the  polls  and  who  vote  for  a  person  for 
office,  if  for  any  valid  reason  their  votes  are  as  if  no  votes,  they 
are  also  bound  by  the  result  of  the  action  of  those  whose  votes  are 
valid  and  of  effect.  As  if,  in  voting  for  an  office  to  which  one  only 
can  be  elected,  two  are  voted  for,  and  their  names  appear  together 
on  the  ballot,  the  ballot  so  far  is  lost.  The  votes  are  as  if  for  a 
dead  man  or  for  no  man.  They  are  thrown  away;  and  those  who 
cast  them  are  to  be  held  as  intending  to  throw  them  away,  and  not 
to  vote  for  any  person  capable  of  the  office.  And  then  he  who  re- 
ceives the  highest  number  of  earnest  valid  ballots,  is  the  one  chosen 
to  the  office. 

We  may  go  a  step  further.  They  who,  knowing  a  person  is  in- 
eligible to  office  by  reason  of  any  disqualification,  persistently  give 
their  ballots  for  him,  do  throw  away  their  votes,  and  are  to  be  held 
as  meaning  not  to  vote  for  anyone  for  that  office.  But  when  shall 
it  be  said  that  an  elector  so  knows  of  a  disqualification  rendering 
ineligible  the  person,  and  knowing,  persistently  casts  for  him  his 
ballot?  There  may  be  notice  of  the  disqualifying  fact,  and  of  the 
legal  effect  of  it,  given  so  directly  to  the  voter,  as  that  he  shall  be 
charged  with  actual  knowledge  of  disqualification. 

There  may  be  a  disqualifying  fact  so  patent  or  notorious,  as  that 
"knowledge  in  the  elector  of  the  ineligibility  may  be  presumed  as  a 
matter  of  law.  In  modern  times  Lord  Denman,  C.  J.,  thus  puts  a 
case:  "No  one  can  doubt  that  if  an  elector  would  nominate  and 
vote  only  for  a  woman  to  fill  the  office  of  mayor,  or  burgess  in  par- 
liament, his  vote  would  be  thrown  away;  there  the  fact  would  be 
notorious,  and  every  man  would  be  presumed  to  know  the  law 
upon  that  fact."  Gosling  v.  Velcy,  7  Ad.  &  Ell.,  N.  R.  406-439;  53 
Eng.  Com.  Law,  406.  And  then  referring  doubtless  to  the  viva 
voce  manner  of  voting  in  England,  and  to  the  manner  of  keeping 


PEOPLE  EX  REL.  PURMAN  V.  CLUTE.  69 

polling  books  there,  and  to  the  fact  of  the  number  of  electors  there 
being  small,  so  that  for  whom  each  elector  has  voted  is  known, 
and  he  may  be  safely  allowed  to  recall  his  vote  for  an  ineligible 
person,  and  give  it  for  another  eligible,  the  learned  judge  con- 
tinues: "But  in  no  such  case  are  the  electors  who  vote  for  him 
deprived  of  their  vote  if  the  fact  becomes  known  and  is  declared 
while  an  election  is  still  incomplete.  They  may  instantly  proceed 
to  another  nomination  and  vote  for  another  candidate.  If  it  be 
disclosed  afterward,  the  party  elected  may  be  ousted  and  the 
election  declared  void;  but  the  candidate  in  the  minority  will  not 
be  deemed  ipso  facto  elected.  But  where  an  elector,  after  voting, 
receives  due  notice  that  a  particular  candidate  is  disqualified,  and 
yet  will  do  nothing  but  tender  his  vote  for  him,  he  must  be  taken 
voluntarily  to  abstain  from  exercising  his  franchises. ' ' 

To  which  we  add,  that  not  only  must  the  fact  which  disqualifies 
be  known,  but  also  the  rule  or  enactment  of  the  law  which  makes 
the  fact  thus  effectual. 

In  the  multitude  of  cases  in  which  the  question  has  arisen,  we 
think  that  up  to  this  point,  there  is  no  essential  difference  of  re- 
sult. All  agree  that  there  must  be  prior  notice  to,  or  knowledge 
in  the  elector  of  fact  and  law,  to  make  his  vote  so  ineffectual  as 
that  it  is  thrown  away.  But  some  say  that  if  there  be  a  public  law, 
declaratory  that  the  existence  of  a  certain  fact  creates  ineligibility 
in  the  candidate,  the  elector  having  notice  of  the  fact  is  conclu- 
sively presumed  in  law  to  have  knowledge  of  the  legal  rule,  and 
to  be  deemed  to  have  voted  in  persistent  disregard  of  it.  Others 
deny  that  the  maxim  "Ignorantia  juris  excusat  neminem"  (even 
with  the  clause  of  it,  "quod  quisque  scire  tenetur,"  not  often 
quoted,  and  of  which  we  are  reminded  by  the  very  thorough  brief 
of  the  learned  counsel  for  the  relator),  can  be  carried  on  to  that 
length,  and  insist  that  there  does  not  apply  in  this  question  the 
rule  that  all  citizens  must  be  held  to  know  the  general  laws  of  the 
land,  and  the  special  law  affecting  their  own  locality. 

That  maxim,  in  its  proper  application,  goes  to  the  length  of 
denying  to  the  offender  against  the  criminal  law  a  justification  in 
his  ignorance  thereof ;  or  to  one  liable  for  a  breach  of  contract,  or 
for  a  civil  tort,  the  excuse  that  he  did  not  know  of  the  rule  which 
fixes  his  liability.  It  finds  its  proper  application  when  it  says 
to  the  elector,  who,  ignorant  of  the  law  which  disqualifies,  has 
voted  for  a  candidate  ineligible,  your  ignorance  will  not  excuse 
you  and  save  your  vote;  the  law  must  stand,  and  your  vote  in 
conflict  with  it  must  be  lost  to  you.    But  it  does  not  have  a  proper 


70  FORMATION  OP  THE  OFFICIAL  RELATION. 

application  when  it  is  carried  further,  and  charges  upon  the  elec- 
tor such  a  presumption  of  knowledge  of  fact  and  of  law  as  finds 
him  full  of  intent  to  vote  in  the  face  of  knowledge,  and  to  so  per- 
sist, in  casting  his  vote  for  one  for  whom  he  knows  that  it  cannot 
be  counted,  as  to  manifest  a  purpose  to  waste  it.  The  maxim 
itself  concedes  that  there  may  be  a  lack  of  actual  knowledge  of 
the  law.  But  it  is  ignorance  of  it  which  shall  not  excuse.  Then 
the  knowledge  of  the  law  to  which  each  one  is  held  is  a  theoretical 
knowledge ;  and  the  doctrine  urged  upon  us  would  carry  a  theoret- 
ical knowledge  of  the  statute  further  than  the  statute  goes  itself. 
The  statute  but  makes  ineffectual  to  elect  the  votes  given  for  one 
disqualified.  The  doctrine  would  make  knowledge  not  actual,  of 
that  statute  thus  limited,  waste  the  votes  of  the  majority,  and 
bring  about  the  choice  to  office  by  the  votes  of  a  minority.  We 
are  not  cited  to  nor  do  we  find  any  decision  to  that  extent  of  any 
court  in  this  State.  The  industrious  research  of  the  learned  coun- 
sel of  the  relator  has  found  some  from  courts  in  other  sister 
states.  Gulick  v.  New,  14  Ind.  97,  is  to  that  effect.  Carson  v. 
McPhetridge,  15  id.,  331,  follows  the  last  cited  case.  Hatchtson  v. 
Tilden,  4  Har.  &  McH.,  279,  was  a  case  at  Nisi  Prius,  and  is  to 
that  effect.  With  respect  for  those  authorities,  we  are  obliged  to 
say  that  they  are  not  sustained  by  reasoning  which  draws  with  it 
our  judgment.  Commonwealth  v.  Read,  2  Ashmead  261,  is  also 
cited.  But  that  was  a  case  of  a  board  of  twenty,  assembling  in  a 
room  to  elebt  a  county  treasurer.  On  motion  being  made  to  elect 
viva  voce,  a  protest  was  made  that  the  law  under  which  they  were 
acting  prescribed  a  vote  by  ballot.  Thus  actual  notice  of  the  law 
and  fact  was  brought  to  each  elector  before  voting.  Nineteen 
persisted  in  voting  viva  voce.  These  were  held  to  be  wasted  votes. 
One  voted  by  ballot;  and  his  vote  was  held  to  prevail,  and  the 
person  he  voted  for  to  be  elected.  Commonwealth  v.  Cluley,  56 
Penn.  St.  270,  is  also  cited.  But  the  language  of  the  court  there 
is:  **The  votes  cast  at  an  election  for  a  person  who  is  disquali- 
fied from  holding  an  office  are  not  nullities.  They  cannot  be  re- 
jected by  the  inspectors,  or  thrown  out  of  the  count  by  the  return 
judges.  The  disqualified  person  is  a  person  still,  and  every  vote 
thrown  for  him  is  formal."  And  that  was  the  case  of  one  who 
was  ineligible  by  reason  of  having  held  the  office  of  sheriff  of  a 
county,  and  became  a  candidate  in  the  same  county  for  the  same 
office  before  the  lapse  of  time  prescribed  by  the  constitution;  and 
a  case  in  facts  quite  like  this  in  hand. 


PEOPLE  EX  REL.  FURMAN  V.  CLUTE.  71 

And  there  are  American  authorities  which  hold  that  if  a  ma- 
jority of  those  voting  by  mistake  of  law  or  fact  happen  to  cast 
their  votes  upon  an  ineligible  candidate,  it  by  no  means  follows 
that  the  next  to  him  in  poll  shall  receive  the  office.  Saunders  v. 
Haynes,  13  Cal.  145;  State  v.  Giles,  1  Chand.  (Wis.)  112;  State 
V.  Smith,  14  Wis.  497.  And  in  Dillon  on  Mun.  Corp.,  p.  176,  sec- 
tion 135,  it  is  stated  that  unless  the  votes  for  an  ineligible  person 
are  expressly  declared  to  be  void,  the  effect  of  such  person  re- 
ceiving a  majority  of  the  votes  cast  is,  according  to  the  weight 
of  American  authority  and  the  reason  of  the  matter  (in  view  of 
our  mode  of  election,  without  previous  binding  nominations,  by 
secret  ballot,  leaving  each  elector  to  vote  for  whomsoever  he 
pleases),  that  a  new  election  must  be  had,  and  not  to  give  the 
office  to  the  qualified  person  having  the  next  highest  number  of 
votes.  And  this  view  is  sustained  by  a  preponderance  of  the  au- 
thorities cited  by  the  author  of  the  foot-note,  some  of  which  are 
cited  above 

We  think  that  the  rule  is  this :  The  existence  of  the  fact  which 
disqualifies,  and  of  the  law  which  makes  that  fact  operate  to  dis- 
qualify, must  be  brought  home  so  closely  and  so  clearly  to  the 
knowledge  or  notice  of  the  elector,  as  that  to  give  his  vote  there- 
with indicates  an  intent  to  waste  it.  The  knowledge  must  be 
such,  or  the  notice  brought  so  home,  as  to  imply  a  wilfullness  in 
acting,  when  the  action  is  in  opposition  to  the  natural  impulse 
to  save  the  vote  and  make  it  effectual.  He  must  act  so  in  defiance 
of  both  law  and  fact,  and  so  in  opposition  to  his  own  better 
knowledge,  that  he  has  no  right  to  complain  of  the  loss  of  his  fran- 
chise, the  exercise  of  which  he  has  wantonly  misapplied. 

To  state  a  truism;  our  theory  of  government  by  the  people  is 
upon  the  assumption  that  the  people  as  a  whole,  are  intelligent 
of  their  rights  and  interests,  and  are  honestly  and  earnestly  con- 
cerned in  the  due  and  wise  administration  of  affairs,  and  zeal- 
ously alive  to  the  need  of  good  and  fitting  men  in  the  various 
places  of  public  trust,  and  hold  in  high  esteem  the  privilege  of 
suffrage,  and  are  unready  to  pretermit  its  exercise  or  to  exercise 
it  meaninglessly.  It  is  much  to  presume,  with  this  as  our  starting 
point,  that  any  considerable  body  of  electors  will  purposely  so 
exercise  their  right  of  electing  to  office  as  that  it  shall  be  but  an 
empty  form;  and  that  going  through  with  outward  signs  of  an 
election  they  will  of  intent  so  cast  their  ballots,  as  that  they  will 
be  votes  wasted. 

Now  the  finding  in  this  case  is,  that  there  was  no  proof  of  actual 


72  FORMATION  OF  THE  OFFICIAL  EELATION. 

notice  of  Clute's  ineligibility,  nor  of  any  facts  from  which  notice 
could  be  implied,  save  that  he  was  a  supervisor. 

There  was  but  this  fact,  and  the  law  upon  the  statute  book; 
sufficient  in  themselves,  as  we  hold,  to  render  him  ineligible. 

But  therefrom  to  give  the  office  to  the  relator,  it  is  first  to  be 
presumed,  as  a  matter  of  law,  that  near  300  of  those  who  voted 
for  Clute  had  knowledge  of  the  fact  that  he  was  supervisor;  had 
knowledge  of  the  existence  of  the  act  of  1853;  and  knew  that  the 
fact  and  the  law,  concurring  thus,  he  was  ineligible  to  receive 
and  avail  himself  of  their  votes  in  his  favor,  and  knew  that  their 
votes  given  to  him  were  wasted,  without  effect  upon  the  count. 

It  is  to  be  presumed  further,  that  knowing  this,  they  all,  though 
seemingly  desirous  of  taking  an  effectual  participation  in  the 
choice  of  a  person  to  the  office  of  superintendent,  deliberately  so 
acted  as  that  they  are  assumed  to  have  persisted  against  know- 
ledge; determined  to  "do  nothing  but  tender  their  votes  for  him." 

All  concur. 
Judgment  accordingly. 

See  also  Maynard  v.   Board,  S4  Mich.   228  supra. 

The  rule  Is  not  clear  as  to  whether  In  the  absence  of  a  law  to 
that  effect  a  plurality  will  elect.  State  v.  Fagan,  42  Conn.  32.  But 
McCrary  in  his  Law  of  Elections,  2nd  ed.  §  197,  considers  that  a  plurality 
is  always  sufficient  where  a  majority  is  not  expressly  required  and  a  stat- 
ute providing  the  plurality  rule  is  constitutional.  In  re  The  Plurality 
Elections,  15  R.  I.  617. 


6.    Nominations  to  Office. 

STEPHENSON  V.  BOARD  OF  ELECTION  COMMISSIONERS. 

Supreme  Court  of  Michigan.     October,  1898. 
118  Mich.  396. 

Hooker,  J.  The  relator  asks  a  mandamus  to  compel  the  sev- 
eral boards  of  election  commissioners  of  the  twelfth  congressional 
district  to  place  the  name  of  the  relator  upon  the  Republican  tick- 
ets throughout  the  district  as  candidate  for  Congress,  to  the  ex- 
clusion of  the  name  of  Charles  D.  Shelden,  each  claiming  to  be 
the  nominee  of  the  regularly  called  convention  of  the  Republican 
party.     The  record  shows  that  a  congressional  convention  was 


STEPHENSON  V.  ELECTION  COMMISSIONERS.  73 

called,  and  the  delegates  assembled.  It  is  admitted  to  have  been 
a  regularly  called  convention,  and  therefore  its  nominee,  if  ascer- 
tainable, is  lawfully  entitled  to  have  his  name  printed  upon  the 
ticket. 

Nothing  is  more  certain  than  that,  when  this  assembly  met,  it 
constituted  what  the  law  calls  * '  a  regularly  called  convention ' ' ;  and 
had  there  been  no  split,  the  right  of  the  nominee  to  the  place  upon 
the  ticket  could  not  have  been  successfully  questioned  on  the 
ground  that  it  was  organized  upon  the  motion  of  Mr.  Hambitzer, 
instead  of  under  the  leadership  of  Newett.  But  it  did  split;  and 
we  must  do  one  of  two  things,  viz. :  Either  follow  the  precedents, 
and  say  that  we  will  not  decide  between  the  rival  factions,  or 
ourselves  decide  who  were  the  lawfully  elected  delegates  to  the 
convention.  To  do  this,  we  might  be  called  upon  to  investigate 
every  ward  or  township  caucus  and  county  convention  held  in 
the  two  disputed  counties,  and,  had  either  side  asked  it,  through- 
out the  district.  We  have  intimated  that  the  assembly  is  the 
judge  of  the  qualification  of  its  members,  and  that  back  of  its 
decisions  we  cannot  go.  Its  presiding  ofl&cer  is  its  creature,  and 
it  must  protect  itself.  In  turn,  its  voters  must  protect  them- 
selves against  fraud  upon  their  convention  or  misconduct  of  its 
delegates,  oflBcers  and  candidates;  and  when  a  considerable  fac- 
tion of  a  convention  leaves  the  meeting,  and  nominates  a  ticket, 
claiming  to  be  the  representative  of  the  party  which  called  the 
convention,  it  is  not  the  province  of  the  courts  to  determine  upon 
technical  grounds  that  is  not,  and  that  its  action  is  void,  and 
deny  it  a  place  upon  the  ballot,  thereby  defeating  the  purification 
of  methods  within  the  party,  or  to  say  which  faction  was  right 
and  which  wrong.  It  is  a  right  of  the  voter  to  repudiate  wrong 
and  corruption  and  fraud,  if  it  exists,  and  to  prevent,  or  unearth 
and  defeat,  corruption,  and  he  should  not  be  hampered  by  tech- 
nical rules.  If  in  this  case  this  convention  was  unable  to  con- 
clude its  business  in  harmony,  and  the  delegates  divided  and 
made  two  nominations,  they  should  not  be  denied  the  privilege  of 
going  to  the  polls  with  both.  Each  nominee  is  here  contending 
that  he  represents  the  only  pure  republicanism  of  the  district, 
and  is  the  lawful  nominee  of  the  true  party.  The  electors  must 
decide  between  them.  In  such  case  we  know  of  no  way  of  de- 
termining which  of  these  names  ought  of  right  go  upon  the 
Republican  ticket.  If  it  were  left  to  the  voters,  there  would 
doubtless  be  an  honest  difference  of  opinion  upon  the  merits  of 


74  FORMATION  OP  THE  OFFICIAL  RELATION. 

the  question.  The  same  may  be  true  of  the  boards.  They  may 
not  know  what  they  should  do,  and  we  cannot  tell  them  further 
than  to  say  that,  under  the  admitted  facts  and  the  precedents, 
both  are  entitled  to  places  upon  the  ballot. 

It  has  been  held  in  this  state  that,  where  rival  factions  of  a 
regularly  called  convention  of  a  party  nominate  and  certify 
different  tickets,  the  election  commissioners  have  no  authority 
to  accept  one,  to  the  exclusion  of  the  other;  and  it  was  held 
further,  that,  under  such  circumstances,  both  tickets  should  be 
printed  upon  the  ballots;  and  it  was  said  in  that  connection  that 
the  name  of  the  party  as  certified  should  be  placed  above  the 
ticket,  without  further  addition  or  distinctive  designation  than 
such  as  was  contained  in  the  certificates  furnished.  See  Shields 
V.  Jacob,  88  Mich.  164  (13  L.  R.  A.  760).  That  case  arose  under 
Act  No.  190,  Pub.  Acts  1891,  which  provided  for  what  is  ordinar- 
ily called  an  ''Australian  ballot"  requiring  the  adoption  of  a 
vignette  by  each  party,  under  which  the  party  ticket  was  re- 
quired to  be  printed. 

A  similar  question  arose  in  Colorado  the  next  year,  under  a 
law  of  like  character,  which  provided  that  the  officer  with  whom 
the  certificate  was  filed  should  pass  upon  objections  seasonably 
filed.     .     .    .    People  v.  District  Court,    18  Col.  26. 

Phelps  V.  Piper,  48  Neb.  724  (33  L.  R.  A.  53),  was  a  case  where 
different  conventions,  called  by  different  committees,  but  both 
claiming  to  represent  one  and  the  same  party,  held  conventions 
at  different  times  and  places;  and  the  question  of  the  right  of 
one  ticket  to  a  place  on  the  ballot  came  before  the  court  of  last 
resort.  It  was  held  that  both  tickets  were  entitled  to  places  upon 
the  ballot.     .     .     . 

The  case  of  State  v.  Johnson,  18  Mont.  556,  arose  under  a 
similar  statute,  and  bears  a  striking  resemblance  to  the  present 
case.    .     .    . 

It  is  observable  that  all  the  cases  cited  deny  the  authority  of 
the  officer  or  court  to  determine  that  the  candidate  of  one  or 
the  other  of  two  factions  of  a  party  is  regularly  nominated,  and 
entitled  to  a  place  upon  the  ballot,  where  the  statute  has  not  ex- 
pressly or  by  necessary  implication  conferred  the  power.  Sev- 
eral of  these  question  the  expediency  of  committing  such  power 
to  either,  and  some  doubt  the  power  of  the  legislature  to  pass 
such  a  law.  There  are  several  decisions  in  the  State  of  New  York, 
which  hold  that  the  courts  have  authority  to  pass  upon  such 
questions,  and  determine,  between  factions  of  a  party,  the  right 


STEPHENSON  V.  ELECTION  COMMISSIONERS.  75 

to  a  place  upon  the  ticket.  These  decisions  are  not  adjudications 
by  the  court  of  last  resort,  however,  and  they  arise  under  a  statute 
expressly  conferring  the  power.  In  the  year  1897  a  case  was  de- 
cided by  the  court  of  appeals  {In  re  Fairchild,  151  N.  Y.  359), 
where  it  was  held  that  the  action  of  party  authorities — i.  e.,  con- 
ventions and  committees — should  be  recognized  as  of  controlling 
importance.  We  do  not  understand  from  what  we  are  able  to 
gather  from  the  case  that  it  was  held  that  such  decision  was  final 
or  binding  upon  the  court,  but  that  it  was  proper  to  follow  the 
determination  of  the  party  authorities;  but,  be  that  as  it  may, 
the  important  fact  that  the  statute  of  New  York  expressly  gives 
the  courts  jurisdiction  in  such  cases  does  appear. 

The  constitutionality  of  such  laws  does  not  seem  to  be  ques- 
tioned in  the  New  York  case.  The  case  is  interesting  if  not  im- 
portant, for  its  bearing  upon  the  claim  made  here  that  the  state 
convention  determined  between  the  rival  factions  in  this  case. 
But  we  are  not  disposed  to  follow  it,  in  the  absence  of  a  statute 
requiring  the  courts  to  settle  these  questions.  See,  also.  In  re 
Redmond,  (Sup.)  25  N.  Y.  Supp.  381,  and  In  re  Pollard,  Id.  385. 

As  illustrative  of  the  kind  of  difficulties  which  arise  when  the 
legislature  imposes  these  duties  upon  the  courts,  one  of  the  New 
York  cases  may  be  cited,  viz..  In  re  WoodwortJi,  16  N.  Y.,  Supp. 
147.  That  was  not  the  first  time  that  the  matter  there  litigated 
was  before  the  courts,  as  will  be  seen  later.  It  was  a  proceeding 
under  a  statute  to  compel  a  county  clerk  to  print  the  names  of 
certain  parties  claiming  to  be  regularly  nominated  candidates  of 
the  Republican  party  of  the  county,  and  its  determination  in- 
volved an  adjudication  between  rival  factions  (each  claiming  to 
be  the  regular  organization)  of  the  regularity  of  their  respective 
nominations. 

Objections  were  filed  to  the  certificates,  and  passed  upon  by 
the  county  clerk,  and  then  presented  to  the  court,  as  the  law  pro- 
vided. The  court  said  that  the  certificates  were  regular,  and 
that  it  was  therefore  necessary  to  go  into  extrinsic  facts.  These 
disclosed  that  the  county  convention  split,  and,  as  there  were 
contesting  delegations  from  four  towns,  which  sent  delegates 
enough  to  control  the  convention  (in  view  of  the  fact  that  the  un- 
disputed delegates  were  evenly  divided),  it  was  only  possible  to 
determine  which  faction  had  a  majority  by  ascertaining  which  of 
the  contesting  delegations  were  entitled  to  seats.  This  the  court 
proceeded  to  do  by  investigating  the  proceedings  at  the  caucuses. 


76  FORMATION  OP  THE  OFFICIAL  RELATION. 

In  short,  the  court  assumed  to  determine  who  were  the  lawful 
delegates,  and  held  that  the  faction  having  the  largest  number 
of  such  delegates  was  entitled  to  a  place  upon  the  ticket,  irre- 
spective of  the  regularity  or  irregularity  of  the  organization  or 
action  of  the  convention,  upon  the  assumption,  we  suppose,  that 
it  was  a  deliberative  body  only  in  name,  whose  delegates  would 
blindly  vote  for  the  candidates  favored,  without  deliberate  consid- 
eration of  merits. 

But  the  case  did  not  end  here.  It  came  again  before  the  same 
court,  and  we  quote  from  the  opinion : 

"When  this  controversy  first  required  a  judicial  determina- 
tion, it  became  necessary  to  decide  it  upon  such  facts  as  were 
established  by  affidavits,  unaided  by  the  action  of  any  convention 
of  the  party;  and,  as  those  facts  were  thus  made  to  appear,  I 
had  no  difficulty  in  reaching  the  conclusion  before  mentioned.  I 
am  still  satisfied  that  such  conclusion  was  justified,  and  should 
now  adopt  it  without  hesitation,  were  it  not  for  the  fact  that  a 
different  one  has  been  so  uniformly  reached  by  the  party  conven- 
tions. In  determining  a  question  similar  to  this  which  arose  in 
Monroe  county  {In  re  Redmond,  25  N.  Y.  Supp.  381),  where  the 
question  of  regularity  had  been  passed  upon  by  the  state  conven- 
tion of  the  Democratic  party,  I  have  just  held  that  the  action  of 
that  body  must  be  regarded  as  conclusive;  and  I  see  no  reason 
why  the  same  rule  should  not  obtain  in  this  case.  The  only 
difference  is  that  here  the  state  organization  did  not  pass  upon 
the  question  until  after  it  had  been  determined  judicially;  but, 
nevertheless,  both  factions  submitted  their  claims  to  that  body  and, 
for  the  reason  stated  in  the  opinion  in  the  Redmond  case,  I  think 
the  defeated  party  must  now  acquiesce  in  its  decision. 

"I  still  think,  as  already  stated,  that  the  title  to  regularity  of 
the  Patterson  faction  was  pretty  clearly  established  upon  the 
original  hearing,  and  that  it  would  in  view  of  the  provision  of  the 
statute  which  authorizes  this  proceeding,  have  been  no  more  than 
courteous  for  the  party  convention  to  have  adopted  the  decision 
of  the  general  term,  which  was  deliberately  made,  and  after  a 
careful  and  impartial  hearing;  but  there  is  no  way  in  which  they 
can  be  compelled  to  do  so,  and  consequently  it  seems  to  me  that 
the  only  rule  for  courts  and  judges  to  adopt  in  this  and  all  sim- 
ilar contests  is  that  they  will  interfere  only  in  cases  where  there 
has  been  no  adjudication  of  the  question  of  regularity  by  some 


STEPHENSON  V.  ELECTION  COMMISSIONERS.  77 

division  of  the  party  which  is  conceded  to  be  superior  in  point  of 
authority  to  the  one  in  which  the  contention  arose,  provided,  of 
course,  that  the  question  of  good  faith  in  the  making  of  such  ad- 
judication is  not  involved.  The  adoption  of  a  different  rule 
would  ineritably  tend  to  bring  party  organiaations  and  the  courts 
into  unseemly  conflicts  over  questions  which  are  peculiarly  within 
the  cognizance  of  the  former  tribunals, — a  result  which  most  cer- 
tainly ought,  if  possible,  to  be  avoided."  In  re  Pollard,  25  N.  Y. 
Supp.  385. 

Thus,  it  will  be  seen  that  Mongin  and  politics  triumphed  over 
the  judicially  determined  rights  of  Patterson.  A  more  humiliat- 
ing and  unseemly  chapter  is  not  to  be  found  in  the  history  of 
jurisprudence  in  this  country,  and  it  is  all  due  to  the  misguided 
attempt  to  impose  upon  the  court  the  duty  of  presiding  over  pol- 
itical conventions  and  caucuses  through  the  medium  of  actions  or 
proceedings  at  law,  unfitted  for  the  purpose.  In  the  Case  of  Fair- 
child,  151  N.  Y.  359,  the  matter  was  not  disposed  of  until  after 
the  election,  and  therefore,  when  heard  and  decided,  involved 
only  a  question  of  costs. 

In  the  case  before  us,  had  issue  been  joined,  and  the  case  sent 
down  for  trial  of  the  facts,  it  is  not  improbable  that  it  would  still 
be  dragging  along  when  the  term  of  office  for  which  the  parties 
are  candidates  shall  have  expired. 

We  have  seen  that  this  court  held  in  the  Shields  Case  that  the 
tickets  of  both  factions  were  entitled  to  places  upon  the  ballot. 
The  same  is  true  in  this  case,  unless  we  find  a  change  in  the  law 
forbidding  it,  and  requiring  us  to  determine  which  ticket  is  en- 
titled to  the  place. 

It  may  be  said  that  under  the  law  of  1895  (Act  No.  17,  Pub. 
Acts  1895,  Section  10),  providing  that  "it  shall  be  unlawful  for 
said  board  of  election  commissioners  to  cause  to  be  printed  in 
more  than  one  column  on  the  ballot  the  name  of  any  candidate 
who  shall  have  received  the  nomination  by  two  or  more  parties 
or  political  organizations  for  the  same  office"  one  or  the  other 
of  the  nominees  will  be  at  the  disadvantage  of  having  his  name 
appear  in  a  column  by  itself,  as  in  the  Todd  Case.  Todd  v.  Kala- 
mazoo Co.  Election  Com'rs,  104  Mich.  485  (29  L.  R.  A.  330).  We 
think,  however,  that  the  public  good  requires  the  private  incon- 
venience; and  we  cannot  hold,  in  the  absence  of  a  statute  re- 
quiring it,  that  the  nominees  may  stickle  for  a  comparatively 
unimportant  right,  to  the  general  public  inconvenience  to  result 


78  FORMATION  OP  THE  OFFICIAL  RELATION. 

from  his  pursuit  of  an  unauthorized  remedy  of  doubtful  eflRcacy 
and  expediency.  It  may  be  asked  which  of  these  nominees  should 
be  subjected  to  this  disadvantage.  Manifestly,  we  have  no  means 
of  determining  this  question,  nor  can  we  lay  down  a  rule  for  such 
a  case  as  this  further  than  to  say  that  their  names  shall  appear 
in  adjoining  columns. 

It  is  therefore  ordered  that  the  several  respondents  give  to  the 
names  of  the  nominees  adjoining  columns,  said  respondents  them- 
selves determining  which  shall  be  placed  upon  the  general  ticket 
of  the  Republican  party,  the  other  to  be  in  a  separate  column 
under  the  party  name  and  vignette;  the  full  ticket  to  be  placed 
first  upon  the  ballot.    No  costs  will  be  allowed. 

The  other  justices  concurred. 

In  those  states  where  under  the  law  the  courts  exercise  a  control 
over  the  nominations  of  political  parties  it  is  held  that  conventions 
must  be  regularly  called.  State  v.  Tooker,  18  Mon.  840,  must  represent 
all  the  members  of  the  party,  State  v.  Weir,  5  Wash.  82,  must  be  fair- 
ly conducted.  Matter  of  County  Clerk,  21  Misc.  Rep.  (N.  Y.)  543,  and 
must  meet  at  the  place  fixed  by  the  rules  of  the  party,  Liggett  v.  Bates, 
24  Col.  314.  A  nomination  once  made  cannot  be  revoked  after  the  adjourn- 
ment of  the  convention.  People  v.  Police  Commissioners,  10  Misc.  Rep. 
(N.  Y.)  98. 


PEOPLE  EX  REL.  COFFEY  V.  DEMOCRATIC  COMMITTEE. 

Court  of  Appeals  of  New  York.    October,  1900. 

164  N.  Y.  335. 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Su- 
preme Court  in  the  second  judicial  department,  entered  June  5, 
1900,  reversing  an  order  of  Special  Term  granting  a  peremptory 
writ  of  mandamus  requiring  the  defendant  to  place  the  name  of 
the  relator  upon  its  membership  and  to  restore  him  to  the  rights 
and  privileges  pertaining  to  membership  in  the  Democratic  gen- 
eral committee  of  Kings  county. 

At  a  primary  election  held  in  September,  1899,  the  relator  was 
duly  elected  a  member  of  the  Democratic  general  committee  of 
Kings  county  and  afterwards  duly  qualified  by  paying  the  pre- 
scribed dues.  At  a  meeting  of  such  committee  held  March  23, 
1900,  he  was,  by  resolution,  expelled  for  alleged  disloyalty  and 
open  hostility  to  the  Democratic  party,  and  has  since  been  barred 


PEOPLE  EX  BEL.  V.  DEMOCRATIC  COMMITTEE.  79 

from  exercising  the  rights  and  privileges  pertaining  to  his  office 
as  member  of  such  committee. 

Parker,  Ch.  J.  The  fundamental  question  in  this  case  is 
whether  a  member  of  the  general  committee  of  a  county  may  be 
removed  from  office  as  a  member  of  the  committee.  The  answer 
to  it  depends  upon  the  construction  now  to  be  given  to  the  primary 
election  law  (Chapter  473  of  the  Laws  of  1899,  vol.  II),  section 
first  of  which,  in  declaring  the  application  of  the  act,  says:  *'It 
shall  be  controlling:      (1)  on  the  methods  of  enrolling  voters. 

;    (2)     on  primary  elections ;    (3) 

on  party  conventions ;    (4)  on  the  choice    .     .    . 

of  political  committees  and  on  the  conduct  of  political  committees 
in  and  for  any  political  subdivision  of  the  state.     .    .     ." 

It  will  help  us  intelligently  to  consider  the  statute  if  we  call  to 
mind  the  preceding  legislation  intended  to  protect  the  rights  of 
minorities;  the  statute  law  looking  to  the  purity  of  the  ballot, 
and  the  organic  law  having  for  its  purpose  the  encouragement 
of  independent  action  in  matters  relating  to  municipal  govern- 
ment. The  help  will  come  from  our  possession  of  the  situation 
in  which  the  legislators  were  when,  in  1899,  they  passed  the 
statute  in  question,  which  was  in  part  composed  of  the  general 
drift  of  public  opinion  and  the  fault  which  that  public  opinion 
had  found  with  the  machinery  for  election  of  public  officials.  The 
settled  conviction  that  the  safeguarding  of  our  institutions  re- 
quires the  untrammelled  exercise  of  the  franchise  by  the  citizens 
and  that  the  result  be  protected  from  fraud,  has  led  us  to  no  in- 
considerable amount  of  legislation  during  the  present  generation — 
legislation  aimed  largely,  although  not  entirely  at  the  frauds  of 
majorities,  who  have,  at  times,  manifested  a  disposition  to  retain 
their  power,  let  the  cost  be  what  it  might.  The  frauds  that  have 
perhaps  occasioned  the  greatest  amount  of  discussion  resulted 
from  colonization  and  repeating,  for  the  correction  of  which  sev- 
eral registry  acts  were  passed.  At  the  outset  the  legislation  on 
that  subject  proceeded  on  the  view  that  only  in  great  cities  were 
such  frauds  practiced,  but  such  view  proved  to  be  partial,  and 
in  1890  a  general  registry  law  was  passed  applicable  to  all  of  the 
state  except  the  cities  of  New  York  and  Brooklyn.  (Chapter  321 
of  the  Laws  of  1890.)  In  those  cities  registration  had  long  been 
required.  (Chapter  142  of  the  Laws  of  1880.)  An  enlightened 
public  sentiment  was  at  the  same  time  making  war  against  the 
evils  of  bribery  and  the  outcome  was  a  new  departure  in  our 
method  of  voting 


80  FORMATION  OP  THE  OFFICIAL  RELATION. 

Complaints  had  also  been  made  that  the  practical  effect  of  the 
power  exercised  by  the  organization  was  to  render  ineffective 
independent  voting  in  purely  municipal  affairs,  to  the  detriment 
of  the  best  interests  of  the  cities;  and  the  recent  constitutional 
convention  (the  work  of  which  was  subsequently  ratified  and 
adopted  by  the  people)  undertook  to  ameliorate  the  situation,  to 
some  extent,  by  providing  that  city  officers  should  be  elected  at  a 
different  time  than  state  officers,  the  election  of  the  latter  to 
take  place  in  even,  and  the  former,  in  odd  numbered  years,  the 
reason  assigned  being  that,  unrestrained  by  national  and  state 
contests,  the  citizen  would  naturally  be  more  independent,  not 
only  in  voting,  but  in  bringing  about  independent  nominations 
whenever  the  party  to  which  he  belonged  should  attempt  to  make 
nominations  intended  to  subserve  the  selfish  purposes  of  the  lead- 
ers rather  than  to  promote  the  public  interests. 

Prior  to  1882  there  was  no  attempt  to  regulate  by  law  the  con- 
duct of  primaries,  but  chapter  154  of  the  laws  of  that  year,  known 
as  the  Chapin  act,  declared  certain  acts  committed  at  primaries 
crimes,  such  as  the  false  personation  of  a  voter,  intentionally  vot- 
ing without  right,  prevention  of  others  from  voting,  and  fraudu- 
lent concealment  or  destruction  of  ballots.  It  also  required  that 
the  presiding  officers  and  inspectors  at  such  elections  take  the 
usual  oath  of  inspectors  at  general  elections,  and  provided  for  the 
challenge  of  voters  and  the  administration  of  an  oath  to  a  person 
so  challenged. 

While  these  provisions  reduced  to  a  considerable  extent  the 
wrongs  which  had  been  committed  against  the  voter  who  desired  to 
participate  in  the  selection  of  the  candidates  of  his  party,  and 
made  snap  caucuses  impossible  and  the  selection  of  delegates  by 
brute  force  extremely  difficult,  still  the  right  of  the  general  com- 
mittee to  prescribe  tests  or  qualifications  for  a  voter  was  in  some 
instances  so  employed  as  to  exclude  from  the  participation  in  the 
primary  many  who  were  not  in  sympathy  with  the  majority  of  the 
committee  in  all  respects,  and  who  might  be  termed  members  of  a 
minority  faction  in  the  party.  The  not  unnatural  desire  of  the 
several  general  committees  to  perpetuate  their  power  and  con- 
trol led,  in  some  instances,  to  the  making  of  "regulations"  under 
which  members  who  were  not  congenial  to  the  majority  were  dis- 
ciplined upon  charges  of  disloyalty,  inefficiency  or  mismanage- 
ment, and  the  places  made  vacant  by  their  removal  were  oftentimes 
filled  by  men  who,  from  choice  or  prudence,  worked  in  harmony 
with  the  majority  of  the  organization,  for  the  latter  term  practical- 


'  PEOPLE  EX  REL.  V.  DEMOCRATIC  COMMITTEE.  81 

ly  means  the  particular  members  of  a  party  within  a  given  terri- 
tory who  are,  for  the  time  being,  in  full  control  of  its  affairs. 

In  McKane  v.  Adams,  123  N.  Y.  609,  it  appeared  that  the 
plaintiff  was  formerly  a  member  of  the  Democratic  association  of 
his  town  and  a  delegate  upon  the  general  committee  of  the  county. 
Charges  were  preferred  against  the  town  association  and  the  trial 
resulted  in  its  being  disbanded.  A  reorganization  of  the  town 
association  was  undertaken  and  a  primary  election  thereupon  or- 
dered by  the  general  committee  of  the  county  organization,  at 
which  the  defendant  was  elected  a  delegate  to  the  county  commit- 
tee. The  general  committee  refused  to  accept  the  returns  of  the 
primary  election  and  to  recognize  him  as  a  delegate.  It  was 
held  that  membership  in  such  an  association  is  a  privilege  which 
may  be  accorded  or  withheld.  And  such  being  the  status  of  a 
delegate  to  the  general  committee,  that  body  could  refuse  to  recog- 
nize the  choice  of  a  given  constituency  until  such  time  as  they 
should  conclude  to  elect  a  delegate  agreeable  to  the  wishes  of  the 
majority,  thus  rendering  futile  all  attempts  at  independent,  other- 
wise termed  ** hostile"  action. 

These  and  other  abuses,  as  they  were  called  by  the  minority 
members  of  the  party  associations,  became  so  common  that  a  de- 
mand was  made  for  a  primary  election  law  sufficiently  comprehen- 
sive in  scope  to  secure  to  all  citizens  equal  rights  in  the  primary 
elections,  conventions  and  political  committees  with  the  party 
with  which  they  were  allied.  This  demand  the  legislature  under- 
took to  meet  by  chapter  179  of  the  Laws  of  1898,  which  was 
amended  (but  not  in  respects  affecting  this  question)  by  chapter 
473  of  the  Laws  of  1899.  These  acts  recognize  the  equal  impor- 
tance of  primary  and  general  elections  and  model  the  conduct  of 
the  former  upon  the  general  lines  and  conduct  of  the  latter.  They 
provide  for  the  enrollment  of  the  voter,  and  the  only  exaction 
permitted  precedent  to  his  right  to  enroll  is  that  he  shall  express 
an  intention  to  support  generally  at  the  next  general  state  or 
national  election  the  nominees  of  such  party  for  such  state  or 
national  offices.  Section  3  subdivision  1.  No  inquiry  as  to  the 
past  political  conduct  is  permitted  or  promise  as  to  future  sup- 
port of  local  candidates  required.  They  provide  for  booths  at 
public  expense,  in  which  the  primary  voter  must  in  secret  prepare 
his  ballot;  for  ballots  and  their  printing  and  subsequent  folding 
so  that  the  inspectors  shall  not  be  able  to  know  for  whom  the  bal- 
lot is  cast ;  for  the  administration  of  an  oath  to  a  voter  in  case  of 
a  challenge ;  for  challengers  and  watchers ;  for  an  annual  primary 
6 


82  FORMATION  OP  THE  OFFICIAL  RELATION. 

day,  and  that  the  polls  shall  be  held  open  for  a  fixed  period  of 
time.  The  dominant  idea  pervading  the  entire  statute  is  the 
absolute  assurance  to  the  citizen  that  his  wish  as  to  the  conduct  of 
the  affairs  of  his  party  may  be  expressed  through  his  ballot  and 
thus  given  effect;  whether  it  be  in  accord  with  the  wishes  of  the 
leaders  of  his  party  or  not,  and  that  thus  shall  be  put  in  effective 
operation,  in  the  primaries,  the  underlying  principle  of  democracy, 
which  makes  the  will  of  an  unfettered  majority  controlling.  In 
other  words,  the  scheme  is  to  permit  the  voters  to  construct  the 
organization  from  the  bottom  upwards,  instead  of  permitting  the 
leaders  to  construct  it  from  the  top  downwards. 

Now,  having  in  mind  the  purpose  of  this  statute  and  the  deci- 
sion of  this  court  in  the  McKane  case — ^that  membership  in  a 
county  general  committee  is  a  privilege  which  may  be  accorded  or 
withheld,  not  a  right  which  can  be  gained  independently  and  then 
enforced,  inasmuch  as  the  association  is  voluntary,  being  organized 
without  a  charter  and  regulated  as  to  its  action  by  a  constitution 
and  by-laws — let  us  further  examine  the  statute  to  se^  whether 
the  legislature  intended  to,  and  did,  take  away  from  the  general 
committee,  the  power,  for  any  cause  whatsoever,  to  expel  members 
elected  thereto  by  the  voters  of  a  town  or  ward. 

In  the  first  place,  the  voluntary  character  of  the  county  general 
committee  has  been  destroyed,  for  the  statute  expressly  commands 
that  ''each  shall  have  a  general  committee  for  each  county." 
There  is  but  one  way  to  gain  membership,  says  the  statute,  and 
that  is  through  the  suffrages  of  the  members  of  the  party  exercised 
**at  the  annual  primary  elections  on  the  annual  primary  day"  and 
at  "public  expense."  (Section  4,  subdivisions  2  and  3  and  sec- 
tion 6.) 

And  the  general  committee  is  commanded  to  meet  and  organize 
on  "the  day  fixed  by  the  rules  and  regulations  of  the  party." 
At  that  meeting  a  member  elected  at  the  preceding  town  or  ward 
primary  may  appear  to  assume  the  duties  of  the  office  to  which 
he  has  been  elected,  and  the  production  of  a  certificate  of  election 
from  the  "custodian  of  primary  records,  or  a  duplicte  thereof, 
shall  be  sufficient  to  entitle  the  person  named  therein  to  be  ad- 
mitted to  the committee  to  which  he  shall  have 

been  elected " 

Does  the  recital  of  these  provisions  suggest  that  the  legislature 
intended  that  the  committee  should  be  the  judge  of  the  election  or 
other  qualification  of  its  members,  or  that  the  primary  voters 
would  be  the  judge?     What  was  the  object  of  the  legislation — 


PEOPLE  EX  REL.  V.  DEMOCRATIC  COMMITTEE.  83 

to  protect  the  majority  of  the  committee  from  enforced  association 
with  a  disagreeable  or  "hostile"  member,  or  to  protect  the  right 
of  the  voters  to  have  their  wishes  in  party  matters  presented  by 
their  chosen  representatives? 

If  the  former,  then  legislation  was  not  needed  in  that  direction, 
for  the  general  committee  had  a  method  of  ridding  themselves  of 
offensive  members,  that  was  in  full  operation,  as  the  McKane  Case 
witnesseth.  If  the  latter  was  the  object  of  the  legislature,  it  is 
difficult  to  see  how  it  could  have  taken  more  certain  measures  for 
its  accomplishment.  It  provided  that  the  statute  should  control 
not  only  the  choice  but  also  the  conduct  of  political  committees. 
The  choice  of  the  member  it  vested  absolutely  in  the  voter  at  the 
primary,  reserving  no  voice  whatever  in  the  matter  to  his  asso- 
ciates in  the  committee.  It  provided  many  things  for  the  conduct 
of  the  committee,  but  the  right  to  expel  a  member  was  not  one  of 
them.  Power  was  given  to  the  committee  to  prevent  a  member 
who  had  failed  to  pay  his  annual  dues  **from  participating  in  the 
meetings  of  such  committee."  Expulsion  from,  or  forfeiture  of, 
his  office  was  not  named  as  the  penalty  for  non-payment  of  dues, 
but  only  exclusion  from  participation  in  the  meetings.  And 
it  is  apparent  from  a  reading  of  the  provisions  that  the  words  were 
chosen  with  a  view  of  enabling  a  member  to  resume  attendance 
of  the  meetings  upon  payment  of  dues.  But  if  this  provision 
were  capable  of  being  treated  as  authorizing  expulsion  for  non- 
payment of  dues,  the  maxim  expressio  unius  est  exclusio  alterius 
would  be  applicable  and  call  for  a  construction  of  the  statute  deny- 
ing power  to  expel  a  member  of  the  committee  for  any  other 
reason. 

If  I  am  right  in  the  views  expressed,  no  other  question  need  be 
considered,  for  the  statute  manifests  an  intent  not  to  allow  the 
committee,  on  any  pretext  whatever,  to  remove  the  committee- 
man from  office,  and  it  is  the  duty  of  this  court  to  give  full  force 
and  effect  to  the  legislative  intent. 

It  has  been  suggested  that  it  would  be  intolerable  for  the  mem- 
bers of  a  general  committee  to  associate  with  a  member  who  is 
hostile  to  the  ticket,  and  that  it  follows  that  the  legislature  must 
be  presumed  to  have  had  such  a  situation  in  mind.  I  answer — 
without  assenting  for  one  moment  that  the  legal  conclusion  follows 
from  the  proposition  of  fact  standing  alone — ^that  it  does  not  stand 
alone;  that  the  legislature  was  confronted  with  what  is  regarded 
as  an  abuse  of  the  rights  of  the  citizens  in  party  matters,  which 


84  FORMATION  OF  THE  OFFICIAL  RELATION. 

compelled  it  to  decide  which  was  the  lesser  of  two  evils,  to  compel 
association  occasionally  with  a  member  who  is  hostile  to  some  por- 
tion of  the  party  candidates  or  a  majority  of  the  committee,  or  to 
permit  the  general  committee  to  deprive  the  primary  voters  of  the 
choice  of  a  representative.  It  decided  that  the  wrongs  that  had  been 
and  were  being  done  to  the  primary  voters  exceeded  that  which 
would  result  from  occasional  association  with  a  hostile  member.  In 
other  words,  it  was  determined  that  the  majority  of  the  primary 
voters  were  entitled  to  select  any  representative  they  might  de- 
sire, who  would  be  responsible  to  those  elcting  him,  and  onlj'  to 
them,  for  his  conduct  in  office.  That  determination  should  be 
given  effect  by  the  decision  of  this  court  agreeably  to  that  well- 
understood  canon  of  construction  that  commands  the  court  in  con- 
struing a  statute  to  give  effect  to  the  intention  of  the  legislature. 

The  order  of  the  Appellate  Division  should  be  reversed  and  that 
of  the  Special  Term  affirmed,  with  costs. 

CuLLEN,  J.    (dissenting). 

The  order  appealed  from  should  be  affirmed,  with  costs. 

Haight,  Vann  and  Landon,  J.  J.,  concur  with  Parker,  Ch.  J., 
for  reversal;  O'Brien,  J.,  concurs  with  Cullen,  J.,  for  affirmance: 
and  Bartlett,  J.,  concurs  with  the  result  reached  by  Cullen,  J. 

Order  reversed,  etc. 

But  the  title  to  a  party  office  may  not  be  tried  by  quo  warranto 
since  such  a  position  is  not  a  public  office.  Attorney  General  v.  Dro- 
han,   169   Mass.   534. 


II.    The  Law  of  Appointment.^ 

1.    Nature  of  the  Power  to  Appoint. 

PEOPLE  EX  REL.  BALCOM  V.  MOSHER  ET  AL. 

Court  of  Appeals  of  New  York.    May,  1900. 
163  N.  Y.  32. 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  third  judicial  department,  entered  November  28,  1899, 
reversing  an  order  of  special  term  granting  a  peremptory  writ  of 
mandamus  commanding  the  defendants  to  appoint  the  relator  to 
the  position  of  superintendent  of  streets  and  city  property  of  the 

•  The  power  of  appointment  is  not  included  within  the  executive  power 
vested  in  the  governor  by  the  state  constitution.  Fox  v.  McDonald,  101 
Al.  61. 


PEOPLE  EX  EEL.  BALCOM  V.  MOSHER  ET  AL.  85 

city  of  Binghamton  for  a  probationary  term  of  two  months,  and 
denying  the  motion  for  such  writ. 

The  charter  of  that  city  provides  that  the  mayor  shall  appoint 
four  commissioners  who  shall  constitute  a  board  to  be  known  as 
the  board  of  street  commissioners  of  the  city  of  Binghamton ;  that 
it  shall  have  the  management  and  control  of  the  street  department 
and  its  powers  and  duties  are  defined.  It  then  declares  that  on 
the  second  Tuesday  in  February  of  every  alternate  year  the  board 
shall  appoint  a  superintendent  of  streets  and  city  property.     .     .     . 

The  position  of  superintendent  became  vacant  February  1,  1899, 
by  the  expiration  of  the  term  of  the  previous  incumbent.  In  the 
following  April  the  municipal  civil  service  commission  certified  to 
the  board  of  street  commissioners  the  names  of  three  persons  ap- 
pearing upon  the  eligible  list  prepared  by  the  commission  as  a 
result  of  a  competitive  examination  therefor.  Upon  the  list  were 
the  names  of  Bolles,  Balcom  and  Seabury.  Bolles  stood  highest, 
Balcom  next  and  Seabury  last.  Balcom  and  Seabury  were  both 
honorably  discharged  soldiers  of  the  army  during  the  late  Civil 
War,  and  as  such  were  entitled  to  preference  over  Bolles. 

The  Special  Term  held  that  the  civil  service  law  of  1899  was 
constitutional,  and  that  it  required  the  street  commissioners  to 
appoint  to  the  office  of  street  superintendent  the  veteran  who  stood 
highest  upon  the  eligible  list  furnished  by  the  local  civil  service 
commissioners.  Upon  appeal  the  Appellate  Division  held  that  the 
act  of  1899  was  unconstitutional  so  far  as  it  required  the  appoint- 
ment of  the  person  standing  highest  upon  such  list,  and  reversed 
the  judgment  of  the  Special  Term. 

Martin,  J.  The  only  controversy  upon  this  appeal  relates  to 
the  constitutionality  of  the  civil  service  statute  of  1899.  The  ques- 
tion involved  is  the  power  of  the  Legislature  to  abrogate  the  right 
conferred  by  the  State  Constitution  upon  the  local  authorities  of 
a  city  to  appoint  such  of  its  officers  as  are  not  directed  by  the  Con- 
stitution to  be  elected  or  otherwise  appointed.     (Sec.  2,  Art.  10.) 

The  office  of  superintendent  of  streets  and  city  property  of  the 
city  of  Binghamton  falls  within  this  statute,  and,  if  valid,  it  is 
controlling  as  to  the  appointment  of  an  incumbent  of  that  office. 
The  provisions  of  the  Constitution,  by  which  its  validity  is  to  be 
tested,  are  section  2  of  article  10  and  section  9  of  article  5. 

.    In  interpreting  the  Constitution  it  is  to  be  considered  as  a  whole, 


86  FORMATION  OP  THE  OFFICIAL  RELATION. 

complete  in  itself :  force  is  to  be  given  to  every  provision  contained 
in  it,  and  each  clause  explained  and  qualified  by  every  other. 

Therefore,  these  two  provisions  should  be  construed  together, 
giving  force  to  both,  and  to  each  should  be  accorded  its  appro- 
priate place  and  proper  effect,  with  some  office  to  perform,  and  at 
the  same  time  they  should  be  so  construed  as  to  operate  harmoni- 
ously. We  find  no  repugnancy  between  these  sections  of  the  Con- 
stitution. Section  two  has  been  a  part  of  the  organic  law  of  the 
State  for  many  years,  and  obviously  it  was  not  intended  to  be 
superseded  or  changed,  as  no  language  was  employed  in  the  Con- 
stitution of  1894  to  indicate  any  such  purpose.  Moreover,  the  pro- 
ceedings of  the  constitutional  convention  show  that  it  was  intended 
to  be  continued  in  force  in  its  existing  form.  Section  nine  was  an 
amendment  adopted  in  1894.  Both  being  part  of  the  present  Con- 
stitution, the  most  that  can  be  claimed  is  that  they  should  be  read 
and  construed  together.  Reading  the  amendment  of  1894  into 
section  two,  it  in  effect  provides  that  all  city  officers  whose  election 
or  appointment  is  not  otherwise  provided  for  by  the  Constitution 
shall  be  appointed  by  such  authorities  thereof  as  the  Legislature 
shall  designate  for  that  purpose,  which  appointments  shall  be  made 
according  to  merit  and  fitness  to  be  ascertained  by  competitive  ex- 
aminations so  far  as  practicable.  When  thus  read,  it  becomes 
manifest  that  under  the  Constitution  the  power  of  appointment 
still  remains  in  such  local  authorities  as  the  Legislature  has  desig- 
nated for  that  purpose.  No  alteration  in  that  respect  has  been  made 
or  attempted.  The  only  change  effected  by  the  amendment  of 
1894  is  the  requirement  that  the  local  authorities  in  making  such 
appointments  shall  make  them  "according  to  merit  and  fitness," 
to  be  ascertained  by  examinations,  competitive  or  otherwise.  The 
amendment  relates  only  to  the  qualifications  which  appointees  shall 
possess  to  justify  their  appointment  under  section  two,  and  the 
manner  in  which  they  shall  be  ascertained.  Thus  the  power  of  ap- 
pointment is  still  vested  in  the  local  authorities  of  the  various 
municipalities  of  the  State,  and  the  amendment  has  wrought  no 
change  as  to  the  officers  or  bodies  who  are  to  make  such  appoint- 
ments. 

While  the  Legislature  is  authorized  to  designate  the  local  au- 
thorities who  are  to  appoint,  yet,  when  they  are  thus  designated, 
their  actual  power  becomes  constitutional  and  is  controlled  by  that 
instrument.    In  this  case  the  local  authorities  so  designated  to  ap- 


PEOPLE  EX  REL.  BALCOM  V.  MOSHER  ET  AL.  87 

point  a  superintendent  of  streets  and  city  property  were  the  board 
of  street  commissioners  of  the  city  of  Binghamton,  and,  hence, 
the  board  alone  had  power  under  the  Constitution  to  make  an  ap- 
pointment to  fill  that  office.  Yet  the  Special  Term,  without  per- 
mitting it  to  in  any  way  exercise  that  power,  held  the  statute  of 
1899  to  be  valid,  and  that  under  it  the  board  had  no  right  of  selec- 
tion or  choice  between  the  several  candidates  certified  as  eligible  to 
the  place  or  between  the  two  veterans  who  were  so  certified,  but 
that  it  was  absolutely  bound  to  appoint  the  one  veteran  graded 
highest  by  the  civil  service  commission  and  granted  a  peremptory 
mandamus  commanding  the  board  to  appoint  that  person. 

If  the  civil  service  commissioners  have  power  to  certify  to  the  ap- 
pointing officers  only  one  applicant  of  several  who  are  eligible  and 
whom  they  have,  by  their  own  methods  ascertained  to  be  fitted  for 
a  particular  position,  and  their  decision  is  final,  or  if  where  more 
are  certified  the  one  graded  highest  must  be  appointed,  then  the 
civil  service  commission  becomes  and  is  the  actual  appointing 
power.  To  reach  such  a  result,  however,  it  must  be  held  that  the 
word  "appointment"  as  used  in  the  Constitution  is  not  to  be  given 
its  usual  and  ordinary  meaning,  but  may  be  so  limited  and  re- 
stricted as  to  leave  in  the  local  authorities  a  mere  ministerial  duty, 
with  no  discretion,  nor  choice,  nor  responsibility  in  respect  to  the 
person  to  be  appointed.  Such  a  construction  would  completely 
nullify  the  provision  of  the  Constitution  which  confers  the  power 
of  appointing  city  officers  upon  the  local  authorities  of  the  munici- 
pality.   A  fair  reading  of  the  Constitution  leads  to  no  such  result. 

Early  in  the  history  of  the  civil  service  reform  in  this  country 
the  signification  of  the  word  "appointed"  was  considered  in  con- 
nection with  the  United  States  civil  service  statute.  The  United 
States  Attorney-General,  in  discussing  that  question,  said:  "If 
to  appoint  is  merely  to  do  a  formal  act,  that  is,  merely  to  authenti- 
cate a  selection  not  made  by  the  appointing  power,  then  there  is 
no  constitutional  objection  to  the  designation  of  officers  by  a  com- 
petitive examination,  or  any  other  mode  of  selection  which  Congress 
may  prescribe  or  authorize.  But  if  appointment  implies  an  ex- 
ercise of  judgment  and  will,  the  officer  must  be  selected  according 
to  the  judgment  and  will  of  the  person  or  body  in  whom  the  ap- 
pointing power  is  vested  by  the  Constitution,  and  a  mode  of  selec- 
tion which  gives  no  room  for  the  exercise  of  that  judgment  and 
will  is  inadmissible.  If  the  President  in  appointing  a  marshall, 
if  the  Senate  in  appointing  its  secretary,  if  a  court  or  head  of  a 
department  in  appointing  a  clerk,  must  take  the  individual  whom 


88  FORMATION  OF  THE  OFFICIAL  RELATION. 

the  civil  service  board  adjudge  to  have  proved  himself  the  fittest 
by  the  test  of  a  competitive  examination,  the  will  and  judgment 
which  determine  that  appointment  are  not  the  will  and  judgment 
of  the  President,  of  the  Senate,  of  the  court,  or  of  the  head  of  the 
department,  but  are  the  will  and  judgment  of  the  civil  service 
board,  and  that  board  is  virtually  the  appointing  power."  Opin. 
U.  S.  Atty.  Gen.,  vol.  13,  p.  516. 

A  subsequent  report  of  the  United  States  Civil  Service  Commis- 
sion contained  the  following  statement  upon  this  subject:  "The 
appointing  power,  conferred  by  Congress  upon  the  heads  of  de- 
partments, under  the  strict  terms  of  the  Constitution,  is  a  power 
of  choice — a  right  of  selection  for  appointment  from  among  sev- 
eral.    That  opportunity  of  choice  is  inseparable  from  the  power 

itself A  choice  between  four  seems  to  preserve  the 

authority  of  the  appointing  power,  and  to  allow  a  sufficient  variety 
of  capacity  for  answering  the  needs  of  the  public  business.  For 
both  these  reasons,  a  requirement  that  the  applicant  graded  highest 
be  taken  would  be  indefensible."    Report  of  1884. 

The  decisions  of  this  and  other  courts,  State  and  Federal,  as  to 
the  meaning  of  the  word  "appointment,"  and  what  constitutes  an 
appointment  under  the  law,  are  to  the  effect  that  the  choice  of  a 
person  to  fill  an  office  constitutes  the  essence  of  the  appointment; 
that  the  selection  must  be  the  discretionary  act  of  the  officer  or 
board  clothed  with  the  power  of  appointment ;  that  while  he  or  it 
may  listen  to  the  recommendation  or  advice  of  others,  yet  the  selec- 
tion must  finally  be  his  or  its  act,  which  has  never  been  regarded 
or  held  to  be  ministerial.  19  Am.  and  Eng.  Enc.  of  Law  423; 
Johnston  V.  Wilson,  2  N.  H.  202;  Hoke  v.  Field,  10  Bush  (Ky.) 
144;  People  v.  Fitzsimmons,  68  N.  Y.  514;  Marbury  v.  Madison, 
1  Cranch  137 ;  Craig  v.  Norfolk,  1  Mod.  122 ;  People  ex  rel.  Bab- 
cock  V.  Murray,  70  N.  Y.  521 ;  Taylor  v.  Kercheval,  82  Fed.  Rep. 
497,  499 ;  Menges  v.  City  of  Albany,  56  N.  Y.  374 ;  People  ex  rel 
Killeen  v.  Angle,  109  N.  Y.  564,  573.  Thus  it  is  seen  that  the  au- 
thorities upon  the  subject all  agree  in  the  conclu- 
sion that  the  power  of  selection  for  a  public  office  is  and  should  be 
vested  alone  in  the  officers  or  boards  authorized  to  appoint,  although 
it  be  limited  to  persons  possessing  the  qualifications  required  by  the 
civil  service  statutes  and  rules,  and  that  at  least  some  power  of 
selection  is  necessary  to  constitute  an  appointment,  which  should 


PEOPLE  EX  REL.  BALCOM  V.  MOSHER  ET  AL.  89 

be  exercised  by  the  local  authorities,  independently  of  the  civil 
service  commission. 

Moreover,  by  section  ten  of  the  act  of  1899,  if  the  mayor  for  any 
reasons  fails  to  appoint  municipal  civil  service  commissioners,  the 
right  to  appoint  them  is  conferred  upon  the  State  commission  until 
the  expiration  of  the  term  of  the  mayor  then  in  office,  and  until 
their  successors  are  appointed  and  qualify.  The  State  commis- 
sioners are  also  authorized  to  remove  any  municipal  civil  service 
commissioner  for  cause.  Therefore,  there  may  be  circumstances 
under  which  the  selection  of  all  the  appointive  officers  of  a  city  will 
be  controlled  by  the  State  civil  service  commissioners,  and  thus 
the  people  and  local  authorities  of  the  municipality  be  deprived  of 
any  voice  in  the  selection  of  its  officers.  If  it  be  said  that  no  such 
condition  has  arisen  in  this  case,  the  answer  is  that  the  validity  of 
this  statute  must  be  determined  by  the  nature,  character  and  scope 
of  the  powers  attempted  to  be  conferred,  although  they  have  not 
been  actually  exercised.  Stuart  v.  Palmer,  74  N.  Y.  183;  Coxe  v. 
State,  144  N.  Y.  396;  Oilman  v.  Tucker,  128  N.  Y.  190;  Colon  v. 
Lisk,  153  N.  Y.  188,  194. 

I  fancy  it  would  be  difficult  to  imagine  a  construction  of  the 
Constitution  which  would  more  completely  surprise  the  inhabitants 
of  the  various  municipalities  or  political  divisions  of  the  State, 
or  that  would  work  greater  injury  to  fair  and  proper  civil  service 
reform,  than  one  which  would  hold  that  the  principle  of  local  self- 
government  for  cities,  villages  and  other  municipalities  of  the  State 
has  been  so  far  abrogated  by  the  amendment  of  1894  that  the  power 
of  appointment  of  their  local  officers  may  be  transferred  from 
their  local  authorities  to  a  centralized  commission  of  State  ap- 
pointees and  thus  the  principle  of  local  self-government  practically 
destroyed. 

Although  this  Court  in  effect  held  that  the  statute  of  1883  and 
the  rules  adopted  by  the  civil  service  commissioners  under  it,  which 
required  that  officers  to  be  appointed  should  be  selected  from  the 
highest  three  of  the  eligible  list,  was  valid  (People  ex  rel.  McClel- 
land V.  Roberts,  148  N.  Y.  360;  Chittenden  v.  Wurster,  152  N.  Y. 
345,  358J  still,  when  the  Legislature  has,  by  statute,  undertaken 
to  deprive  the  local  authorities  of  all  right  of  selection  and  appoint- 
ment, it  has  exceeded  its  constitutional  power  and  the  act  is  clearly 
in  conflict  with  the  provisions  of  the  organic  law  and  invalid. 

This  order  should  be  affirmed  with  costs. 


90  FORMATION  OF  THE  OFFICIAL  RELATION. 

Parker,  Ch.  J.,  O'Brien  and  Haight,  JJ.,  concur;  Bartlett  and 
Vann,  JJ,,  not  voting;  Landon,  J.,  not  sitting. 
Order  affirmed. 

But  if  the  power  to  appoint  is  not  a  constitutional  power  the  legislature 
may  provide  that  the  one  standing  highest  on  the  list  shall  be  appointed. 
People  V.  Klpley.  171  111.  44. 


THE  STATE  EX  REL.  WORRELL  V.  PEELLB. 

Supreme  Court  of  Indiana.    May,  1890, 
124  Indiana,  515. 

Berkshire,  J.  This  is  the  second  time  this  case  has  been  in  this 
Court.    State  ex  rel.  v.  Peelle,  121  Ind.  495. 

"When  the  case  was  here  the  first  time  the  whole  contention  was 
as  to  the  power  of  the  Legislature  under  the  Constitution  to  desig- 
nate the  incumbent  to  the  office  in  question. 

The  appellee  rested  his  claim  to  the  office  upon  an  election  by  the 
Legislature,  and  the  appellant 's  relator  relied  upon  an  appointment 
from  the  executive  of  the  State. 

The  appellee  now  claims  title  to  the  office  by  virtue  of  an  appoint- 
ment from  the  executive  of  the  State,  while  the  appellant's  relator 
assumes  the  same  position  as  heretofore. 

And  the  question  now  is,  does  the  appellee  hold  the  office  in  ques- 
tion by  appointment  from  the  executive  department  of  the  gov- 
ernment ? 

As  we  now  understand  the  position  of  the  appellee,  it  is  that  he 
holds  the  office  (1)  by  appointment  from  Governor  Porter,  and  (2) 
by  appointment  from  Governor  Gray. 

For  two  sufficient  reasons  the  appellee  received  no  appointment 
to  the  office  in  question  from  Governor  Porter,  the  second  of  which 
applies  with  equal  force  to  the  action  of  Governor  Gray. 

The  second  reason  why  the  appellee  did  not  secure  an  appoint- 
ment from  the  executive  is  that  the  appointing  power  lodged  with 
him  under  the  Constitution  was  never  invoked  in  behalf  of  the  ap- 
pellee, and  so  long  as  it  was  not  called  into  exercise  there  could  be 


'  STATE  EX  REL.  WORRELL  V.  PEELLB.  91 

no  appointment,  although  the  Governor  could  at  any  time  call  it 
into  action. 

It  appears  that  the  General  Assembly  assumed  (and  it  was  but 
an  assumption)  to  take  from  the  executive  department  the  power 
therein  vested  under  the  Constitution  to  designate  the  incumbent 
of  the  office  in  question,  and  not  only  so  but  to  legislate  the  rightful 
incumbent  of  said  office  out  of  office  before  the  expiration  of  his 
term,  and  to  take  unto  themselves  the  election  of  an  incumbent  to 
said  office,  and  as  the  result  the  General  Assembly  elected  the  ap- 
pellee and  gave  him  a  certificate  of  election. 

The  first  election  occurred  on  the  3d  day  of  March,  1883,  and 
upon  a  certificate  thereof  being  presented  to  the  executive  he  issued 
the  following  commission : 

*'The  State  of  Indiana.  To  all  who  shall  see  these  Presents, 
Greeting: 

**  Whereas,  It  has  been  certified  by  the  proper  authority  that, 
at  a  joint  convention  of  the  two  Houses  of  the  fifty-third  General 
Assembly,  held  in  the  hall  of  the  House  of  Representatives,  March 
3d,  1883,  that  William  A.  Peelle,  Jr.,  was  elected  Chief  of  the  Bu- 
reau of  Statistics. 

"Therefore,  Know  ye,  that  in  the  name  and  by  the  authority  of 
the  State  aforesaid,  I  do  hereby  appoint  and  commission  William 
A.  Peelle,  Jr.,  Chief  of  the  Bureau  of  Statistics  aforesaid,  to  serve 
as  such  for  the  term  of  two  years  from  the  8th  day  of  March,  1883, 
and  until  his  successor  shall  have  been  elected  and  qualified. 

* '  In  witness  whereof,  etc. 

**By  the  Governor:  Albert  G.  Porter. 

W.  R.  Myers,  Secretary  of  State." 

There  was  no  pretense  that  the  appellee  held  any  other  title  to 
the  office  than  that  which  the  said  election  conferred  upon  him,  and 
when  we  remember  the  aggressive  attitude  of  the  General  Assembly 
at  that  time  with  reference  to  its  power  to  elect  the  incumbents  to 
a  large  class  of  offices,  including  the  one  in  question  (and  of  this 
we  take  judicial  knowledge),  the  appellee  would  not  have  been  will- 
ing to  have  recognized  the  executive  department  as  the  source  of 
his  title.  The  Governor  was  careful  to  recite  in  the  commission  the 
nature  of  the  appellee's  title  and  that  he  commissioned  him  as  the 
chosen  of  the  General  Assembly.  That  it  was  the  purpose  and  in- 
tention of  the  Governor,  when  he  issued  the  commission,  to  deliver 
to  the  appellee  the  evidence  of  his  title  as  derived  from  the  Legis- 
lature, and  to  make  it  distinctly  appear  that  he  was  in  no  sense 


92  FOEMATION  OP  THE  OFFICIAL  RELATION. 

the  appointee  of  the  executive,  is  so  manifest  that  there  is  no  ground 
for  a  contrary  contention  to  rest  upon.  But  in  addition  to  what 
appears  on  the  face  of  the  commission,  the  records  of  the  executive 
office  disclose  the  fact  that  the  commission  was  issued  to  the  ap- 
pellee because  and  on  account  of  his  election  by  the  General  As- 
sembly. We  know  of  no  sufficient  reason  why  these  records  are  not 
competent  evidence.  They  are  the  records  kept  in  a  public  of- 
fice of  the  official  acts  of  the  chief  executive  officer  of  the  State. 


But  it  is  contended  that  by  some  kind  of  legal  fiction  the  appellee, 
each  time  he  was  commissioned  by  the  Governor,  became  his  ap- 
pointee. 

This  contention  is  not  very  clearly  defined,  but  proceeds,  as  we 
understand  it  (in  part,  at  least),  upon  the  theory  that  all  persons 
are  presumed  to  know  the  law,  and  that  this  presumption  applies 
as  well  to  public  officers  as  to  individuals ;  and,  as  Governors  Porter 
and  Gray  are  presumed  to  have  known,  when  they  commissioned 
the  appellee,  that  the  General  Assembly  had  no  power  to  elect  him 
to  the  office,  that  the  presumption  must  prevail  that  they  intended 
by  their  official  acts  in  commissioning  him  to  appoint  him  to  the 
office,  and  that  this  presumption  must  prevail,  over  their  expressed 
intention  to  the  contrary;  or,  to  express  the  contention  in  other 
language,  though  they  intended  by  their  official  acts  to  do  one  thing, 
and,  in  fact,  did  what  they  intended,  that  in  law  they  did  some- 
thing else.  This  is  carrying  the  doctrine  of  presumptions  beyond 
precedent,  and,  we  think,  beyond  reason. 

On  the  9th  day  of  February,  1885,  the  Legislature  again  elected 
the  appellee  to  the  office  in  question,  and  thereafter,  upon  a  certifi- 
cate of  election,  the  Governor  issued  to  him  a  commission. 

In  1887  there  was  no  election,  and  the  appellee  continued  to  hold 
the  office  until  1889,  when  the  Legislature  again  elected  hitn  to  the 
office,  and  on  presentation  of  his  certificate  of  election  to  the  Gov- 
ernor, a  commission  was  refused,  and  the  Governor  having  ap- 
pointed the  appellant's  relator  and  commissioned  him,  this  con- 
troversy arose. 

The  following  is  the  appellee's  commission  from  Governor  Gray: 

''The  State   of  Indiana.    To  all  who  shall  see   these   Presents, 
Greeting: 
"Whereas,  It  has  been  certified  to  me  by  the  proper  authority 
that  William  A.  Peelle,  Jr.,  has  been  elected  to  the  office  of  Chief  of 


STATE  EX  EEL.  WORRELL  V.  PEELLE.  93 

the  Bureau  of  Statistics  of  the  State  of  Indiana,  by  the  General 
Assembly  on  the  ninth  day  of  February,  A.  D.  1885. 

"Therefore,  Know  ye,  that  in  the  name  and  by  the  authority  of 
the  State  aforesaid,  I  do  hereby  commission  the  said  William  A. 
Peelle,  Jr.,  as  said  Chief  of  the  Bureau  of  Statistics  of  the  State  of 
Indiana  for  the  term  of  two  years  from  the  eighth  day  of  March, 
1885,  and  until  his  successor  shall  have  been  elected  and  qualified. 

"In  witness  whereof,  etc. 

"By  the  Governor:  Isaac  P.  Gray. 

"William  R.  Myers,  Secretary  of  State." 

We  have  nothing  to  add  with  reference  to  Governor  Gray's  ac- 
tion, except  to  say  that  he  seemed  to  be  more  careful,  if  possible, 
than  his  predecessor  to  emphasize  the  fact  that  the  appellee  was 
not  his  appointee,  but  was  commissioned  as  the  chosen  of  the  Gen- 
eral Assembly.  The  word  "appoint"  is  found  in  the  commission 
issued  by  Governor  Porter,  but  nowhere  appears  in  that  of  Gov- 
ernor Gray. 

But  the  further  contention  of  the  appellee  is,  that  as  the  appoint- 
ing power  was  lodged  with  the  executive  of  the  State,  his  purpose 
or  intention  in  commissioning  the  appellee  can  not  be  inquired  into ; 
that  notwithstanding  the  purpose  is  disclosed  in  the  face  of  the 
commission,  all  of  its  recitals  must  be  disregarded,  and  the  com- 
mission treated  as  an  appointment  made  by  the  executive.  Much 
that  we  have  already  said  is  here  applicable. 

This  is  but  contending  for  a  conclusive  presumption  that  you 
must  take  an  officer  to  mean  one  thing  when  he  does  another. 

As  the  appointing  power  was  lodged  in  the  executive  when  he 
commissioned  the  appellee,  had  the  commission  recited  an  appoint- 
ment, or  had  it  been  silent  as  to  the  source  of  the  appellee's  title  to 
the  office,  then  no  doubt  the  commission  would  have  been  conclusive, 
for  the  very  good  reason  that  the  mental  operations  of  the  Gov- 
ernor's mind,  unexpressed  in  the  act,  could  not  be  inquired  into, 
and  if  for  no  other  reason  such  inquiry  would  be  impracticable. 
But  where  the  source  of  title  is  lodged  somewhere  else  than  with 
the  executive,  his  commission  is  only  prima  facie  evidence  of  title. 
Board,  etc.,  v.  State  ex  rel.,  61  Ind.  379 ;  Reynolds  v.  State  ex  rel., 
61  Ind.  392;  Bench  v.  State  ex  rel.,  72  Ind.  297;  State  ex  rel.  v. 
Chapin,  110  Ind.  272 ;  Marbury  v.  Madison,  1  Cranch  137. 

This  Court  has  gone  so  far  as  to  hold  that  even  after  the  Gov- 
ernor has  issued  a  commission,  if  it  appears  that  he  has  commis- 
sioned a  wrongful  claimant,  to  the  prejudice  of  one  who  is  rightfully 


94  FORMATION  OP  THE  OFFICIAL  RELATION. 

entitled  to  the  office,  he  may  issue  the  second  commission.  Gulick  v. 
New,  14  Ind.  93. 

The  same  reasons  which  make  the  Governor's  commission  con- 
clusive, when  silent  as  to  the  source  of  title,  that  the  person  com- 
missioned is  the  Governor's  appointee,  where  he  has  the  power  to 
appoint  an  incumbent  to  an  office,  render  his  commission  conclusive 
that  such  person  is  not  his  appointee  when  it  recites  that  the  per- 
son commissioned  derives  his  claim  of  title  because  of  an  election 
by  the  people  or  Legislature,  and  is  commissioned  because  thereof. 

We  hold  that  when  the  appellant's  relator  was  appointed  there 
was  a  vacancy  in  the  office,  which  the  Governor  was  empowered  to 
fill  by  appointment  until  there  should  be  an  election  by  the  people. 

Judgment  reversed,  with  costs. 

Elliott,  J.,  and  Mitchell,  Ch.  J,,  dissenting 

As  to  the  power  to  appoint  to  fill  vacancies,  see  Fritts  v.  Kuhl,  51  N. 
J.  L,  191,  and  People  v.  Ward,  107  Cal.  236  infra.  In  most  states  the 
legislature  may  Itself  appoint  to  oflSce.  People  v.  Freeman,  80  Cal.  233; 
People  V.  Mayor,  16  Md.  876;  People  v.  Bennett,  64  Barb.  481. 


2.    Eow  Exercised. 

PEOPLE  EX  REL.  BABCOCK  V.  MURRAY. 

Court  of  Appeals  of  New  York.    September,  1877. 
70  N.  r.  521. 

Allen,  'J.  At  the  time  of  the  expiration  of  the  term  of  office 
of  the  defendants  in  1873,  the  power  to  appoint  their  successors 
was  in  the  mayor  of  the  city  of  Lockport,  and  the  assent  or  ap- 
proval of  the  common  council  was  not  required,  and  all  acts  of  the 
common  council  in  affirming  any  nomination  to  the  office,  or  ratify- 
ing the  action  of  the  mayor  in  making  an  appointment,  were  nulli- 
ties. Laws  of  1870,  ch.  175,  sec.  2;  People  v.  Gates,  56  N.  Y.  387; 
Same  v.  Fitzsvmmons,  68  id.  514.  The  learned  judge  by  whom  the 
action  was  tried  has  found  as  a  fact  "that  in  the  month  of  April, 
1873,  the  relators  were  duly  appointed  to  the  office  of  excise  com- 
missioners of  the  city  of  Lockport  in  place  of  the  defendants,"  and 
to  this  finding  there  is  an  exception  as  not  only  not  warranted  by, 
but  as  against  evidence.    The  evidence  discloses  the  fact,  which  is 


PEOPLE   EX   REL.    BABCOCK   V.    MURRAY.  95 

undisputed,  that  the  only  action  of  the  mayor  was  a  verbal  nomina- 
tion of  the  relators  to  the  common  council  for  appointment  to  the 
office.  The  vote  of  the  common  council  and  the  record  of  their  ac- 
tion upon  the  nomination  must  be  laid  out  of  view  as  ultra  vires, 
and  without  efficiency.  They  add  nothing  to  the  verbal  declaration 
and  statement  of  the  mayor,  and  the  claim  is  that  such  nomination 
was  a  verbal  appointment  of  the  persons  named  to  the  office,  the 
completed  act  of  the  mayor  making  the  appointment;  that  an  ap- 
pointment by  parol  without  writing  is  a  valid  exercise  of  the  power 
to  appoint,  and  this  proposition  must  be  sustained  or  the  respond- 
ents cannot  hold  their  judgment.  In  the  People  v.  Pitzsimmons 
we  held,  with  considerable  hesitation  and  not  without  great  doubts, 
that  a  nomination  of  the  mayor  of  Albany  to  the  common  council 
of  that  city,  and  for  their  action,  of  individuals  for  office  under 
the  same  statute,  in  writing,  signed  by  the  mayor  officially  and  filed 
with  the  clerk  of  the  common  council,  in  the  absence  of  any  statute 
prescribing  the  form  of  the  appointment  or  of  the  commission  to 
be  issued,  followed  by  the  taking  of  the  oath  of  office  by  the  persons 
named  before  the  mayor,  was  a  sufficient  appointment  by  the  mayor 
under  the  statute.  No  stress  was  laid  upon  the  action  of  the  com- 
mon council.  The  paper  writing  signed  by  the  mayor  officially, 
although  addressed  to  the  common  council  and  in  the  form  of  a 
nomination  of  the  persons  to  that  body,  was  an  official  appointment 
to  the  office  by  the  mayor,  and  a  substantial  compliance  with  the 
statutes. 

There  is  no  color  in  the  opinion,  or  in  any  statute  of  this  State, 
or  any  custom  or  usage  of  which  we  have  knowledge,  for  claiming 
that  an  appointment  to  any  civil  office  can  be  made  verbally  or 
without  a  proper  writing  evidencing  the  fact. 

It  would  be  unfortunate  if  the  title  to  office  of  one  upon  whose 
official  acts  public  interests  and  private  rights  hinged,  did  or  could 
be  made  to  depend  upon  the  verbal  declarations  and  statements  of 
the  persons  having  the  power  to  make  the  appointment,  to  be  proved 
by  parol  and  liable  to  be  forgotten,  misunderstood  or  misreported, 
subject  to  all  the  contingencies  and  infirnlities  which  are  incident 
to  verbal  evidence,  or  evidence  by  parol,  so  pregnant  of  mischief 
and  misfortune  as  to  have  led  to  the  enactment  of  the  statute  of 
frauds.  It  will  not  be  presumed  that  the  Legislature,  while  making 
void  contracts  involving  trifling  pecuniary  interests  unless  evi- 
denced by  some  writing,  intended  that  important  civil  offices  should 
be  conferred  without  a  commission  or  any  writing,  but  simply  by  a 


96  FORMATION  OF  THE  OFFICIAL  RELATION. 

verbal  statement  of  an  individual  in  any  form  which  by  the  by- 
standers should  be  understood  as  expressing  a  present  intent  to 
make  the  appointment;  and  a  liberal  interpretation  will  be  given 
to  the  statutes  bearing  upon  the  subject  if  necessary  to  avoid  any 
such  conclusion. 

The  Constitution  and  the  laws  of  the  State  create 

or  provide  for  the  creation  of  all  the  offices,  and  prescribe  the  mode 
of  election  or  appointment,  the  terms  and  duration  of  office,  as 
well  as  regulate  the  duties  and  emoluments.  Offices  in  certain 
cases,  may  be  for  a  term  of  years,  during  the  pleasure  of  the  ap- 
pointing power,  or  during  good  behavior;  but  whatever  may  be 
the  term  or  tenure  of  office,  the  appointment  must  be  in  conformity 
with  the  statutes  of  the  State.  An  appointment  in  the  general  sense 
of  the  term  may  be  by  deed  or  in  writing  without  seal  or  verbal, 
depending  upon  the  subject-matter  of  the  appointment  and  the 
terms  of  the  authority  under  which  it  is  made.  But  an  appoint- 
ment to  office  by  the  person  or  persons  having  authority  therefor, 
as  distinguished  from  an  election,  can  only  be  made  verbally,  and 
without  writing  when  permitted  by  the  terms  of  the  statute  con- 
ferring the  power.  Affecting  the  public,  and  not  merely  private 
rights,  and  being  done  under  the  authority  of  the  sovereign  power 
and  not  under  individual  authority,  it  should  be  authenticated  in 
a  way  that  the  public  may  know  when  and  in  what  manner  the  duty 
has  been  performed. 

The  statute  (1  R.  S.  118,  sec.  19)  clearly  contem- 
plates a  commission,  the  form  of  which  is  not  prescribed,  which 
shall  be  the  conclusive  evidence  of  an  appointment  to  a  civil  office. 
The  article  in  which  the  section  is  found  is  entitled,  "Of  nomina- 
tions to  offices  and  the  commissions  of  officers,"  and  after  making 
provision  for  officers  appointed  by  the  Governor  and  Senate,  and 
by  the  Governor,  and  all  the  elective  officers,  and  commissioners  of 
deeds  (then  appointed  by  the  county  judges  and  boards  of  super- 
visors in  joint  convention),  it  provides  in  the  last  section  that  "the 
commissions  for  all  other  offices,  when  no  special  provision  is  made, 
shall  be  signed  by  the  presiding  officer  of  the  board  or  body,  or  by 
the  person  making  the  appointment."  The  language  includes  every 
civil  office  within  the  State  not  excepted  from  its  operation  by 
statute,  and  was  clearly  intended  to  prescribe  the  mode  of  appoint- 
ment. The  appointment  under  this  delegated  authority  is  inchoate 
until  the  last  act  to  be  done  by  the  appointing  power  is  completed. 


PEOPLE   EX   REL.    BABCOCK   V.    MURRAY.  97 

and  that  is  the  signing  of  the  writing  or  the  commission.  The  ap- 
pointment is  then  ,and  not  before,  **  evidenced  by  an  open  un- 
equivocal act."  Ch.  J.  Marshall  in  Marhury  v.  Madison,  supra, 
says:  **Some  point  of  time  must  be  taken  when  the  power  of  the 
executive  over  an  officer  not  removable  at  his  will  must  cease ;  that 
point  of  time  must  be  when  the  constitutional  power  of  appoint- 
ment has  been  exercised ;  when  the  last  act  required  from  the  per- 
son possessing  the  power  has  been  performed.  The  last  act  is  the 
signature  of  the  commission. "  It  is  not  discretionary  with  a  person 
having  the  power  to  appoint  to  office;  whether  there  shall  be  a 
commission;  the  signing  of  the  commission  is  an  integral  part  of 
the  duty  of  the  delegated  power,  and  necessary  to  a  perfect  and 
complete  execution  of  the  power  entitling  the  appointee  to  assume 
the  duties  of  the  office. 

Johnston  v.  WUson,  2  N.  H.  202,  related  to  an 

elective  office,  and  Mr.  Justice  Woodbury  says :  * '  On  general  prin- 
ciples, the  choice  of  a  person  to  fill  an  office  constitutes  the  essence 
of  his  appointment.  After  the  choice,  if  there  be  a  commission,  an 
oath  of  office,  or  any  ceremony  of  inauguration,  these  are  forms 
which  may  or  may  not  be  necessary  to  the  validity  of  any  acts 
under  the  appointment,  according  as  usage  and  positive  statute 
may  or  may  not  render  them  indispensable. ' '  But  in  the  case  of  an 
appointment  by  one  representing  the  public,  the  choice  can  only 
be  made  under  our  statute  by  the  commission  by  which  it  is  evi- 
denced. That  is  the  making  of  the  choice;  the  act  which  is  ef- 
fectual, as  unequivocal  and  final. 

The  relators  have  no  title  to  the  office  in  dispute.  The  defendants 
hold  the  office  by  statute  **  until  others  shall  be  appointed  in  their 
places."  No  such  appointment  has  been  made,  and  they  have  not 
resigned,  or  in  any  way  vacated  their  offices.  They  could  not,  by 
their  act  or  assent,  transfer  the  office  to  the  relators,  or  relieve  them 
selves,  except  in  one  of  the  ways  designated  by  statute.  Johnston 
V.  Wilson,  supra,  1  R.  S.  122,  Sec.  34. 

The  office  is  not  vacant,  and  the  defendants  are  the  legal  in- 
cumbents. The  judgment  must  be  reversed,  and  judgment  given 
for  the  defendants. 

All  concur. 

Judgment  accordingly. 

But  see  Hoke  v.  Field,  10  Bush.  Ky.  144,  which  holds  that  an  oral 
appointment  in  open  court  is  good  where  the  law  does  not  require  that 
the  appointment  shall  be  in  writing. 

i 


98  FORMATION   OF   THE   OFFICIAL  RELATION. 

3.    When  Exercised, 

MARBURY  V.  MADISON. 

Supreme  Court  of  the  United  States.    February,  1803. 

1  Cranch  137. 

At  the  last  term,  viz.,  December  term,  1801,  William  Marbury, 
Dennis  Ramsay,  Robert  Townsend  Hooe,  and  William  Harper,  by 
their  counsel,  Charles  Lee,  Esq.,  late  Attorney-General  of  the 
United  States,  severally  moved  the  court  for  a  rule  to  James  Madi- 
son, Secretary  of  State  of  the  United  States,  to  show  cause  why  a 
mandamus  should  not  issue  commanding  him  to  cause  to  be  deliv- 
ered to  them  respectively  their  several  commissions  as  justices  of 
the  peace  in  the  District  of  Columbia. 

On  the  24th  of  February,  the  following  opinion  of  the  court  was 
delivered  by  the  Chief  Justice  (Marshall). 

Opinion  of  the  court. 

At  the  last  term  on  the  affidavits  then  read  and  filed  with  the 
clerk,  a  rule  was  granted  in  this  case,  requiring  the  Secretary  of 
State  to  show  cause  why  a  mxindamus  should  not  issue,  directing 
him  to  deliver  to  William  Marbury  his  commission  as  a  justice  of 
the  peace  for  the  county  of  Washington,  in  the  District  of  Columbia. 

In  the  order  in  which  the  court  has  viewed  this  subject,  the 
following  questions  have  been  considered  and  decided : 

Ist.    Has  the  applicant  a  right  to  the  commission  he  demands! 

2ndly.  If  he  has  a  right,  and  that  right  has  been  violated,  do 
the  laws  of  his  country  afford  him  a  remedy? 

3dly.  If  they  do  afford  him  a  remedy,  is  it  a  mxindamus  issuing 
from  this  court  T 

The  first  object  of  inquiry  is, 

Ist.    Has  the  applicant  a  right  to  the  commission  he  demands  T 

His  right  originates  in  an  act  of  Congress  passed  in  February, 
1801,  concerning  the  District  of  Columbia. 

It  appears,  from  the  afiidavits,  that  in  compliance  with  this  law, 
a  commission  for  William  Marbury,  as  a  justice  of  the  peace  for 
the  county  of  Washington,  was  signed  by  John  Adams,  then  Presi- 
dent of  the  United  States ;  after  which  the  seal  of  the  United  States 


MABBURY  V.   MADISON.  99 

was  affixed  to  it ;  but  the  commission  has  never  reached  the  person 
for  whom  it  was  made  out. 

In  order  to  determine  whether  he  is  entitled  to  this  commission, 
it  becomes  necessary  to  inquire  whether  he  has  been  appointed  to 
the  office.  For  if  he  has  been  appointed,  the  law  continues  him  in 
office  for  five  years,  and  he  is  entitled  to  the  possession  of  those  evi- 
dences of  office,  which,  being  completed,  became  his  property. 

The  2d  section  of  the  2d  article  of  the  Constitution  declares, 
that  **the  President  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  Senate,  shall  appoint,  ambassadors,  other  public 
ministers  and  consuls,  and  all  other  officers  of  the  United  States, 
whose  appointments  are  not  otherwise  provided  for." 

The  3d  section  declares,  that  **he  shall  commission  all  the  officers 
of  the  United  States." 

An  act  of  Congress  directs  the  Secretary  of  State  to  keep  the  seal 
of  the  United  States,  **to  make  out  and  record,  and  affix  the  said 
seal  to  all  civil  commissions  to  officers  of  the  United  States,  to  be 
appointed  by  the  President,  by  and  with  the  consent  of  the  Senate, 
or  by  the  President  alone,  provided  that  the  said  seal  shall  not  be 
affixed  to  any  commission  before  the  same  shall  have  been  signed 
by  the  President  of  the  United  States." 

These  are  the  clauses  of  the  Constitution  and  laws  of  the  United 
States,  which  affect  this  part  of  the  case.  They  seem  to  contemplate 
three  distinct  operations: 

1st.  The  nomination.  This  is  the  sole  act  of  the  President  and  is 
completely  voluntary. 

2d.  The  appointment.  This  is  also  the  act  of  the  President  and 
is  also  a  voluntary  act,  though  it  can  only  be  performed  by  and  with 
the  advice  and  consent  of  the  Senate. 

3d.  The  commission.  To  grant  a  commission  to  a  person  ap- 
pointed, might,  perhaps,  be  deemed  a  duty  enjoined  by  the  Consti- 
tution. **He  shall,"  says  that  instrument,  "commission  all  the  of- 
ficers of  the  United  States." 

The  acts  of  appointing  to  office,  and  commissioning  the  person 
appointed,  can  scarcely  be  considered  as  one  and  the  same;  since 
the  power  to  perform  them  is  given  in  two  separate  and  distinct 
sections  of  the  Constitution :  The  distinction  between  the  appoint- 
ment and  the  commission  will  be  rendered  more  apparent  by  ad- 
verting to  that  provision  in  the  second  section  of  the  second  article 
of  the  Constitution,  which  authorizes  Congress  **to  vest,  by  law, 
the  appointment  of  such  inferior  officers,  as  they  think  proper,  in 
the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  de- 


100  FORMATION    OP    THE    OFFICIAL   RELATION. 

partments ; ' '  thus  contemplating  cases  where  the  law  may  direct  the 
President  to  commission  an  officer  appointed  by  the  courts,  or  by 
the  heads  of  departments.  In  such  a  case,  to  issue  a  commission 
would  be  apparently  a  duty  distinct  from  the  appointment,  the  per- 
formance of  which,  perhaps,  could  not  legally  be  refused. 

Although  that  clause  of  the  Constitution  which  requires  the 
President  to  commission  all  the  officers  of  the  United  States  may 
never  have  been  applied  to  officers  appointed  otherwise  than  by 
himself,  yet  it  would  be  difficult  to  deny  the  legislative  power  to 
apply  it  to  such  cases.  Of  consequence,  the  constitutional  distinction 
between  the  appointment  to  an  office  and  the  commission  of  an 
officer  who  has  been  appointed,  remains  the  same  as  if  in  practice 
the  President  had  commissioned  officers  appointed  by  an  authority 
other  than  his  own. 

It  follows,  too,  from  the  existence  of  this  distinction,  that  if  an 
appointment  was  to  be  evidenced  by  any  public  act,  other  than  the 
commission,  the  performance  of  such  public  act  would  create  the 
officer;  and  if  he  was  not  removable  at  the  will  of  the  President, 
would  either  give  him  a  right  to  his  commission,  or  enable  him  to 
perform  the  duties  without  it. 

These  observations  are  premised  solely  for  the  purpose  of  ren- 
dering more  intelligible  those  which  apply  more  directly  to  the 
particular  case  under  consideration. 

This  is  an  appointment  made  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  and  is  evidenced  by  no  act  but 
the  commission  itself.  In  such  a  case,  therefore,  the  commission 
and  the  appointment  seem  inseparable;  it  being  almost  impossible 
to  show  an  appointment  otherwise  than  by  proving  the  existence 
of  a  commission;  still  the  commission  is  not  necessarily  the  ap- 
pointment, though  conclusive  evidence  of  it. 

But  at  what  stage  does  it  amount  to  this  conclusive  evidence  ? 

The  answer  to  this  question  seems  an  obvious  one.  The  appoint- 
ment being  the  sole  act  of  the  President,  must  be  completely  evi- 
denced, when  it  is  shown  that  he  has  done  everything  to  be  per- 
formed by  him. 

Should  the  commission,  instead  of  being  evidence  of  an  appoint- 
ment, even  be  considered  as  constituting  the  appointment  itself; 
still  it  would  be  made  when  the  last  act  to  be  done  by  the  President 
was  performed,  or,  at  furthest,  when  the  commission  was  complete. 

The  last  act  to  be  done  by  the  President  is  the  signature  of  the 
commission.  He  has  then  acted  on  the  advice  and  consent  of  the 
Senate  to  his  own  nomination.    The  time  for  deliberation  has  then 


MARBURY  V.   MADISON.  101 

passed.  He  has  decided.  His  judgment,  on  the  advice  and  consent 
cf  the  Senate  concurring  with  his  nomination,  has  been  made,  and 
the  officer  is  appointed.  This  appointment  is  evidenced  by  an  open, 
unequivocal  act;  and  being  the  last  act  required  from  the  person 
making  it,  necessarily  excludes  the  idea  of  its  being,  so  far  as  re- 
spects the  appointment,  an  inchoate  and  incomplete  transaction. 

Some  point  of  time  must  be  taken  when  the  power  of  the  execu- 
tive over  an  officer,  not  removable  at  his  will,*  must  cease.  That 
point  of  time  must  be  when  the  constitutional  power  of  appointment 
has  been  exercised.  And  this  power  has  been  exercised  when  the 
last  act,  required  from  the  person  possessing  the  power,  has  been 
performed.    This  last  act  is  the  signature  of  the  commission. 

The  commission  being  signed,  the  subsequent  duty  of  the  Secre- 
tary of  State  is  prescribed  by  law,  and  not  to  be  guided  by  the  will 
of  the  President.  He  is  to  affix  the  seal  of  the  United  States  to  the 
commission  ,and  is  to  record  it. 

This  is  not  a  proceeding  which  may  be  varied,  if  the  judgment  of 
the  executive  shall  suggest  one  more  eligible ;  but  is  a  precise  course 
accurately  marked  out  by  law,  and  is  to  be  strictly  pursued.  It  is 
the  duty  of  the  Secretary  of  State  to  conform  to  the  law,  and  in 
this  he  is  an  officer  of  the  United  States,  bound  to  obey  the  laws. 
He  acts,  in  this  respect,  as  has  been  very  properly  stated  at  the  bar, 
under  the  authority  of  law,  and  not  by  the  instructions  of  the  Presi- 
dent. It  is  a  ministerial  act  which  the  law  enjoins  on  a  particular 
officer  for  a  particular  purpose. 

If  it  should  be  supposed  that  the  solemnity  of  affiLxing  the  seal 
is  necessary  not  only  to  the  validity  of  the  commission,  but  even  to 
the  completion  of  an  appointment,  still  when  the  seal  is  affixed  the 
appointment  is  made,  and  the  commission  is  valid.  No  other  sol- 
emnity is  required  by  law ;  no  other  act  is  to  be  performed  on  the 
part  of  government.  All  that  the  executive  can  do  to  vest  the 
person  with  his  office  has  been  done;  and  unless  the  appointment 
be  then  made,  the  executive  cannot  make  one  without  the  co-opera- 
tion of  others. 

After  searching  anxiously  for  the  principles  on  which  a  contrary 
opinion  may  be  supported,  none  have  been  found  which  appear  of 
sufficient  force  to  maintain  the  opposite  doctrine. 

*  In  Parsons  v.  United  States,  167  U.  S.  324  and  Shurtleff  v.  United 
States,  189  U.  S.  311,  the  Supreme  Court  has  since  decided  that  the  Pres- 
ident has  an  arbitrary  power  of  removal  of  all  officers  of  the  United 
States  not  judges  of  the  United  States;  not  including  the  territorial  courts. 


102  FORMATION   OP   THE   OFFICIAL   RELATION. 

It  has  also  occurred  as  possible,  and  barely  possible,  that  the 
transmission  of  the  commission,  and  the  acceptance  thereof,  might 
be  deemed  necessary  to  complete  the  right  of  the  plaintiff. 

The  transmission  of  the  commission  is  a  practice  directed  by 
convenience,  but  not  by  law.  It  cannot,  therefore,  be  necessary  to 
constitute  the  appointment  which  must  precede  it,  and  which  is  the 
mere  act  of  the  President.  If  the  executive  required  that  every 
person  appointed  to  an  office  should  himself  take  means  to  procure 
his  commission,  the  appointment  would  not  be  the  less  valid  on  that 
account.  The  appointment  is  the  sole  act  of  the  President;  the 
transmission  of  the  commission  is  the  sole  act  of  the  officer  to  whom 
the  duty  is  assigned,  and  may  be  accelerated  or  retarded  by  cir- 
cumstances which  can  have  no  influence  on  the  appointment.  A 
commission  is  transmitted  to  a  person  already  appointed,  not  to  a 
person  to  be  appointed,  or  not,  as  the  letter  enclosing  the  commis- 
sion should  happen  to  get  into  the  post  office  and  reach  him  in 
safety,  or  to  miscarry. 

It  may  have  some  tendency  to  elucidate  this  point,  to  enquire 
whether  the  possession  of  the  original  commission  be  indispensably 
necessary  to  authorize  a  person,  appointed  to  any  office,  to  perform 
the  duties  of  that  office.  If  it  was  necessary  then  a  loss  of  the  com- 
mission would  lose  the  office.  Not  only  negligence,  but  accident  or 
fraud,  fire  or  theft,  might  deprive  an  individual  of  his  office.  In 
such  a  case,  I  presume  it  could  not  be  doubted  but  that  a  copy  from 
the  record  of  the  office  of  the  Secretary  of  State  would  be,  to  every 
intent  and  purpose,  equal  to  the  original.  The  act  of  Congress  has 
expressly  made  it  so. 

In  the  case  of  commissions,  the  law  orders  the  Secretary  of  State 
to  record  them.  When  therefore  they  are  signed  and  sealed,  the 
order  for  their  being  recorded  is  given ;  and  whether  inserted  in  the 
book  or  not,  they  are  in  law  recorded. 

A  copy  of  this  record  is  declared  equal  to  the  original,  and  the 
fees  to  be  paid  by  a  person  requiring  a  copy  are  ascertained  by  law. 
Can  a  keeper  of  a  public  record  erase  therefrom  a  commission  which 
has  been  recorded  ?  Or  can  he  refuse  a  copy  thereof  to  a  person  de- 
manding it  on  the  terms  prescribed  by  law? 

Such  a  copy  would,  equally  with  the  original,  authorize  the  justice 
of  the  peace  to  proceed  in  the  performance  of  his  duty,  because  it 
would  equally  with  the  original,  attest  his  appointment. 

If  the  transmission  of  a  commission  be  not  considered  as  neces- 
sary to  give  validity  to  an  appointment,  still  less  is  its  acceptance. 


MAEBURY   V.   MADISON.  103 

The  appointment  is  the  sole  act  of  the  President;  the  acceptance 
is  the  sole  act  of  the  officer,  and  is,  in  plain  common  sense,  posterior 
to  the  appointment.  As  he  may  resign,  so  may  he  refuse  to  accept; 
but  neither  the  one  nor  the  other  is  capable  of  rendering  the  ap- 
pointment a  nonentity. 

It  is,  therefore,  decidedly  the  opinion  of  the  court,  that  when  a 
commission  has  been  signed  by  the  President,  the  appointment  is 
made;  and  that  the  commission  is  complete  when  the  seal  of  the 
United  States  has  been  affixed  to  it  by  the  Secretary  of  State. 

Where  an  officer  is  removable  at  the  will  of  the  executive,  the 
circumstance  which  completes  his  appointment  is  of  no  concern; 
because  the  act  is  at  any  time  revocable :  and  the  commission  may 
be  arrested,  if  still  in  the  office.  But  when  the  officer  is  not  re- 
movable at  the  will  of  the  executive,  the  appointment  is  not  revoca- 
ble, and  cannot  be  annulled.  It  has  conferred  legal  rights  which 
cannot  be  resumed. 

The  discretion  of  the  executive  is  to  be  exercised  until  the  ap- 
pointment has  been  made.  But  having  once  made  the  appointment, 
his  power  over  the  office  is  terminated  in  all  cases,  where  by  law 
the  officer  is  not  removable  by  him.  The  right  to  the  office  is  then 
in  the  person  appointed,  and  he  has  the  absolute,  unconditional 
power  of  accepting  or  rejecting  it. 

Mr.  Marbury,  then,  since  his  commission  was  signed  by  the 
President,  and  sealed  by  the  Secretary  of  State,  was  appointed; 
and  as  the  law  creating  the  office  gave  the  officer  the  right  to  hold 
for  five  years,  independent  of  the  executive,  the  appointment  was 
not  revocable,  but  vested  in  the  officer  legal  rights,  which  are  pro- 
tected by  the  laws  of  his  country. 

To  withhold  his  commission,  therefore,  is  an  act  deemed  by  the 
court  not  warranted  by  law,  but  violative  of  a  vested  legal  right. 

This  brings  us  to  the  second  inquiry ;  which  is, 

2dly,  If  he  has  a  right,  and  that  right  has  been  violated,  do  the 
laws  of  his  country  afford  him  a  remedy? 

The  very  essence  of  civil  liberty  certainly  consists  in  the  right 
of  every  individual  to  claim  the  protection  of  the  laws,  whenever 
he  receives  an  injury. 

The  government  of  the  United  States  has  been  emphatically 
termed  a  government  of  laws,  and  not  of  men.  It  will  certainly 
cease  to  deserve  this  high  appellation,  if  the  laws  furnish  no  remedy 
for  the  violation  of  a  vested  legal  right. 


104  FORMATION   OP   THE   OFFICIAL   RELATION. 

If  this  obloquy  is  to  be  cast  upon  the  jurisprudence  of  our  coun- 
try, it  must  arise  from  the  peculiar  character  of  the  case. 

Is  it  in  the  nature  of  the  transaction  ?  Is  the  act  of  delivering 
or  withholding  a  commision  to  be  considered  as  a  mere  political  act, 
belonging  to  the  executive  department  alone,  for  the  performance 
of  which  entire  confidence  is  placed  by  our  Constitution  in  the  su- 
preme executive;  and  for  any  misconduct  respecting  which,  the- 
injured  individual  has  no  remedy? 

That  there  may  be  such  cases  is  not  to  be  questioned ;  but  that 
every  act  of  duty,  to  be  performed  in  any  of  the  great  departments 
of  government,  constitutes  such  a  case,  is  not  to  be  admitted. 

It  is  not  believed  that  any  person  whatever  would  attempt  to 
maintain  such  a  proposition. 

It  follows,  then,  that  the  question,  whether  the  legality  of  an 
act  of  the  head  of  a  department  be  examinable  in  a  court  of  justice 
or  not,  must  always  depend  on  the  nature  of  the  act. 

If  some  acts  be  examinable,  and  others  not,  there  must  be  some 
rule  of  law  to  guide  the  court  in  the  exercise  of  its  jurisdiction. 

In  some  instances  there  may  be  difficulty  in  applying  the  rule 
to  particular  cases;  but  there  cannot,  it  is  believed,  be  much  diffi- 
culty in  laying  down  the  rule. 

By  the  Constitution  of  the  United  States,  the  President  is  in- 
vested with  certain  important  political  powers,  in  the  exercise  of 
which  he  is  to  use  his  own  discretion,  and  is  accountable  only  to  his 
country  in  his  political  character  and  to  his  own  conscience.  To  aid 
him  in  the  performance  of  these  duties,  he  is  authorized  to  appoint 
certain  officers,  who  act  by  his  authority,  and  in  conformity  with  his 
orders. 

In  such  cases,  their  acts  are  his  acts ;  and  whatever  opinion  may 
be  entertained  of  the  manner  in  which  executive  discretion  may  be 
used,  still  there  exists,  and  can  exist,  no  power  to  control  that  dis- 
cretion. The  subjects  are  political.  They  respect  the  nation,  not 
individual  rights,  and  being  intrusted  to  the  executive,  the  decision 
of  the  executive  is  conclusive.  The  application  of  this  remark  will 
be  perceived  by  adverting  to  the  act  of  Congress  for  establishing 
the  department  of  foreign  affairs.  This  officer,  as  his  duties  were 
prescribed  by  that  act,  is  to  conform  precisely  to  the  will  of  the 
President.  He  is  the  mere  organ  by  whom  that  will  is  communi- 
cated. The  acts  of  such  an  officer,  as  an  officer,  can  never  be  exam- 
inable by  the  courts. 


MARBURT   V.    MADISON.  105 

But  when  the  Legislature  proceeds  to  impose  on  that  officer  other 
duties;  when  he  is  directed  peremptorily  to  perform  certain  acts; 
when  the  rights  of  individuals  are  dependent  on  the  performance 
of  those  acts ;  he  is  so  far  the  officer  of  the  law ;  is  amenable  to  the 
laws  for  his  conduct;  and  cannot  at  his  discretion  sport  away  the 
vested  rights  of  others. 

The  conclusion  from  this  reasoning  is,  that  where  the  heads  of 
departments  are  the  political  or  confidential  agents  of  the  executive, 
merely  to  execute  the  will  of  the  President,  or  rather  to  act  in  cases 
in  which  the  executive  possesses  a  constitutional  or  legal  discretion, 
nothing  can  be  more  perfectly  clear  than  that  their  acts  are  only 
politically  examinable.  But  where  a  specific  duty  is  assigned  by 
law,  and  individual  rights  depend  upon  the  performance  of  that 
duty,  it  seems  equally  clear  that  the  individual  who  considers  him- 
self injured,  has  a  right  to  resort  to  the  laws  of  his  country  for  a 
remedy. 

If  this  be  the  rule,  let  us  inquire  how  it  applies  to  the  case  under 
the  consideration  of  the  court. 

The  power  of  nominating  to  the  Senate  and  the  power  of  ap- 
pointing the  person  nominated,  are  political  powers,  to  be  exercised 
by  the  President  according  to  his  own  discretion.  When  he  has  made 
an  appointment,  he  has  exercised  his  whole  power,  and  his  discre- 
tion has  been  completely  applied  to  the  case.  If,  by  law,  the  officer 
be  removable  at  the  will  of  the  President,  then  a  new  appointment 
may  be  immediately  made,  and  the  rights  of  the  officer  are  termin- 
ated. But  as  a  fact  which  has  existed  cannot  be  made  never  to  have 
existed,  the  appointment  cannot  be  annihilated ;  and,  consequently, 
if  the  officer  is  by  law  not  removable  at  the  will  of  the  President,  the 
rights  he  has  acquired  are  protected  by  the  law,  and  are  not  re- 
sumable  by  the  President.  They  cannot  be  extinguished  by  execu- 
tive authority,  and  he  has  the  privilege  of  asserting  them  in  like 
manner  as  if  they  had  been  derived  from  any  other  source. 

The  question  whether  a  right  was  vested  or  not,  is,  in  its  nature, 
judicial,  and  must  be  tried  by  the  judicial  authority.  If,  for  ex- 
ample, Mr.  Marbury  had  taken  the  oaths  of  a  magistrate,  and  pro- 
ceeded to  act  as  one,  in  consequence  of  which  a  suit  had  been 
instituted  against  him,  in  which  his  defence  has  depended  on  his 
being  a  magistrate,  the  validity  of  his  appointment  must  have  been 
determined  by  judicial  authority. 

So,  if  he  conceives  that,  by  virtue  of  his  appointment,  he  has  a 
legal  right  either  to  the  commission  which  has  been  made  out  for 
him,  or  to  a  copy  of  that  commission,  it  is  equally  a  question  ex- 


106  POEMATION   OP   THE   OFFICIAL   RELATION. 

aminable  in  a  court,  and  the  decision  of  the  court  upon  it  must  de- 
pend on  the  opinion  entertained  of  his  appointment. 

That  question  has  been  discussed,  and  the  opinion  is,  that  the 
latest  point  of  time  which  can  be  taken  as  that  at  which  the  ap- 
pointment was  complete,  and  evidenced,  was  when,  after  the  signa- 
ture of  the  President,  the  seal  of  the  United  States  was  aflSxed  to 
the  commission. 

It  is,  then,  the  opinion  of  the  court, 

1st.  That  by  signing  the  commission  of  Mr.  Marbury,  the  Pres- 
ident of  the  United  States  appointed  him  a  justice  of  the  peace  for 
the  county  of  Washington,  in  the  district  of  Columbia ;  and  that  the 
seal  of  the  United  States,  affixed  thereto  by  the  Secretary  of  State, 
is  conclusive  testimony  of  the  verity  of  the  signature,  and  of  the 
completion  of  the  appointment ;  and  that  the  appointment  conferred 
on  him  a  legal  right  to  the  office  for  the  space  of  five  years. 

2dly.  That,  having  this  legal  title  to  the  office,  he  has  a  conse- 
quent right  to  the  commission ;  a  refusal  to  deliver  which  is  a  plain 
violation  of  that  right,  for  which  the  laws  of  his  countrj'  afford  him 
a  remedy. 

It  remains  to  be  inquired  whether, 

3dly.    He  is  entitled  to  the  remedy  for  which  he  applies. 

This  depends  on, 

1st.    The  nature  of  the  writ  applied  for;  and, 

2dly.    The  power  of  this  court. 

1st.    The  nature  of  the  writ. 

Blackstone,  in  the  3d  volume  of  his  commentaries,  page  110,  de- 
fines a  mandamus  to  be  "a  command  issued  in  the  king's  name  from 
the  court  of  king's  bench,  and  directed  to  any  person,  corpora- 
tion, or  inferior  court  of  judicature  within  the  king's  dominions, 
requiring  them  to  do  some  particular  thing  therein  specified,  which 
appertains  to  their  office  and  duty,  and  which  the  court  of  king's 
bench  has  previously  determined,  or  at  least  supposes,  to  be  con- 
sonant to  right  and  justice. ' ' 

This  writ,  if  awarded,  would  be  directed  to  an  officer  of  govern- 
ment, and  its  mandate  to  him  would  be,  to  use  the  words  of  Black- 
stone,  "to  do  a  particular  thing  therein  specified,  which  appertains 
to  his  office  and  duty,  and  which  the  court  has  previously  deter- 
mined, or  at  least  supposes,  to  be  consonant  to  right  and  justice.** 
Or,  in  the  words  of  Lord  Mansfield,  the  applicant  in  this  case,  has 
a  right  to  execute  an  office  of  public  concern,  and  is  kept  out  of  that 
right. 


MABBURY   V.   MADISON.  107 

These  circumstances  certainly  concur  in  this  case. 

Still,  to  render  the  mandamus  a  proper  remedy,  the  officer  to 
whom  it  is  to  be  directed  must  be  one  to  whom,  on  legal  principles, 
such  writ  may  be  directed ;  and  the  person  applying  for  it  must  be 
without  any  other  specific  and  legal  remedy. 

1st.  With  respect  to  the  officer  to  whom  it  would  be  directed. 
The  intimate  political  relation  subsisting  between  the  president  of 
the  United  States  and  the  heads  of  departments,  necessarily  renders 
any  legal  investigation  of  the  acts  of  one  of  those  high  officers  pecu- 
liarly irksome,  as  well  as  delicate ;  and  excites  some  hesitation  with 
respect  to  the  propriety  of  entering  into  such  investigation.  Im- 
pressions are  often  received  without  much  reflection  or  examination, 
and  it  is  not  wonderful  that  in  such  a  case  as  this  the  assertion,  by 
an  individual,  of  his  legal  claims  in  a  court  of  justice,  to  which 
claims  it  is  the  duty  of  that  court  to  attend,  should  at  first  be  con- 
sidered by  some,  as  an  attempt  to  intrude  into  the  cabinet,  and  to 
intermeddle  with  the  prerogatives  of  the  executive. 

It  is  scarcely  necessary  for  the  court  to  disclaim  all  pretensions 
to  such  a  jurisdiction.  An  extravagance,  so  absurd  and  excessive, 
could  not  have  been  entertained  for  a  moment.  The  province  of 
the  court  is,  solely,  to  decide  on  the  rights  of  individuals,  not  to 
inquire  how  the  executive,  or  executive  officers,  perform  duties  in. 
which  they  have  a  discretion.  Questions  in  their  nature  political, 
or  which  are,  by  the  Constitution  and  laws,  submitted  to  the  execu- 
tive, can  never  be  made  in  this  court. 

But,  if  this  be  not  such  a  question ;  if,  so  far  from  being  an  in- 
trusion into  the  secrets  of  the  cabinet,  it  respects  a  paper,  which, 
according  to  law,  is  upon  record,  and  to  a  copy  of  which  the  law 
gives  a  right,  on  the  payment  of  ten  cents ;  if  it  be  no  intermeddling 
with  a  subject  over  which  the  executive  can  be  considered  as  having 
exercised  any  control;  what  is  there  in  the  exalted  station  of  the 
officer,  which  shall  bar  a  citizen  from  asserting,  in  a  court  of  jus- 
tice, his  legal  rights,  or  shall  forbid  a  court  to  listen  to  the  claim, 
or  to  issue  a  mandamus  directing  the  performance  of  a  duty,  not 
depending  on  executive  discretion,  but  on  particular  acts  of  con- 
gress, and  the  general  principles  of  law? 

If  one  of  the  heads  of  departments  commits  any  illegal  act,  under 
color  of  his  office,  by  which  an  individual  sustains  an  injury,  it 
cannot  be  pretended  that  his  office  alone  exempts  him  from  being 
sued  in  the  ordinary  mode  of  proceeding,  and  being  compelled  to 
obey  the  judgment  of  the  law.  How,  then,  can  his  office  exempt  him 
from  this  particular  mode  of  deciding  on  the  legality  of  his  con- 


108  FORMATION    OP    THE    OFFICIAL    RELATION. 

duct,  if  the  case  be  such  a  case  as  would,  were  any  other  individual 
the  party  complained  of,  authorize  the  process? 

It  is  not  by  the  office  of  the  person  to  whom  the  writ  is  directed, 
but  the  nature  of  the  thing  to  be  done,  that  the  propriety  or  impro- 
priety of  issuing  a  mandamus  is  to  be  determined.  Where  the  head 
of  a  department  acts  in  a  case,  in  which  executive  discretion  is  to 
be  exercised ;  in  which  he  is  the  mere  organ  of  executive  will ;  it  is 
again  repeated,  that  any  application  to  a  court  to  control,  in  any 
respect,  his  conduct,  would  be  rejected  without  hesitation. 

But  where  he  is  directed  by  law  to  do  a  certain  act  affecting  the 
absolute  rights  of  individuals,  in  the  performance  of  which  he  is 
not  placed  under  the  particular  direction  of  the  president,  and  the 
performance  of  which  the  president  cannot  lawfully  forbid,  and 
therefore  is  never  presumed  to  have  forbidden;  as,  for  example, 
to  record  a  commission,  or  a  patent  for  land,  which  has  received  all 
the  legal  solemnities;  or  to  give  a  copy  of  such  record;  in  such 
cases,  it  is  not  perceived  on  what  grounds  the  courts  of  the  coun- 
try are  further  excused  from  the  duty  of  giving  judgment  that 
right  be  done  to  an  injured  individual,  than  if  the  same  services 
were  to  be  performed  by  a  person  not  the  head  of  a  department. 

It  is  true  that  the  mandamus,  now  moved  for,  is  not  for  the  per- 
formance of  an  act  expressly  enjoined  by  statute. 

It  is  to  deliver  a  commission,  on  which  subject  the  acts  of  con- 
gress are  silent.  This  difference  is  not  considered  as  affecting  the 
case.  It  has  already  been  stated  that  the  applicant  has,  to  that 
commission,  a  vested  legal  right,  of  which  the  executive  cannot 
deprive  him.  He  has  been  appointed  to  an  office,  from  which  he 
is  not  removable  at  the  will  of  the  executive;  and  being  so  ap- 
pointed, he  has  a  right  to  the  commission  which  the  secretary  has 
received  from  the  president  for  his  use.  The  act  of  congress  does 
not  indeed  order  the  secretary  of  state  to  send  it  to  him,  but  it  is 
placed  in  his  hands  for  the  person  entitled  to  it;  and  cannot  be 
more  lawfully  withheld  by  him  than  by  any  other  person. 

This,  then,  is  a  plain  case  for  a  mandamus,  either  to  deliver  the 
commission,  or  a  copy  of  it  from  the  record ;  and  it  only  remains  to 
be  inquired. 

Whether  it  can  issue  from  this  court. 

The  act  to  establish  the  judicial  courts  of  the  United  States  au- 
thorizes the  supreme  court  "to  issue  writs  of  mandamus,  in  cases 
warranted  by  the  principles  and  usages  of  law,  to  any  courts  ap- 


MARBURY   V.   MADISON.  109 

pointed,  or  persons  holding  office,  under  the  authority  of  the  United 
States." 

The  Constitution  vests  the  whole  judicial  power  of  the  United 
States  in  one  supreme  court,  and  such  inferior  courts  as  congress 
shall,  from  time  to  time,  ordain  and  establish.  This  power  is  ex- 
pressly extended  to  all  cases  arising  under  the  laws  of  the  United 
States ;  and,  consequently,  in  some  form,  may  be  exercised  over  the 
present  case;  because  the  right  claimed  is  given  by  a  law  of  the 
United  States. 

In  the  distribution  of  this  power  it  is  declared  that  *'the  su- 
preme court  shall  have  original  jurisdiction  in  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls,  and  those  in  which 
a  state  shall  be  a  party.  In  all  other  cases,  the  supreme  court 
shall  have  appellate  jurisdiction. ' ' 

It  has  been  insisted,  at  the  bar,  that  as  the  original  grant  of  juris- 
diction, to  the  supreme  and  inferior  courts,  is  general,  and  the 
clause,  assigning  original  jurisdiction  to  the  supreme  court,  con- 
tains no  negative  or  restrictive  words,  the  power  remains  to  the 
legislature,  to  assign  original  jurisdiction  to  that  court  in  other 
cases  than  those  specified  in  the  article  which  has  been  recited; 
provided  those  cases  belong  to  the  judicial  power  of  the  United 
States. 

If  it  had  been  intended  to  leave  it  in  the  discretion  of  the  legis- 
lature to  apportion  the  judicial  power  between  the  supreme  and 
inferior  courts  according  to  the  will  of  that  body,  it  would  cer- 
tainly have  been  useless  to  have  proceeded  further  than  to  have 
defined  the  judicial  power,  and  the  tribunals  in  which  it  should 
be  vested.  The  subsequent  part  of  the  section  is  mere  surplusage, 
is  entirely  without  meaning,  if  such  is  to  be  the  construction.  If 
congress  remains  at  liberty  to  give  this  court  appellate  jurisdic- 
tion, where  the  constitution  has  declared  their  jurisdiction  shall 
be  original;  and  original  jurisdiction  where  the  constitution  has 
declared  it  shall  be  appellate ;  the  distribution  of  jurisdiction,  made 
in  the  Constitution,  is  form  without  substance. 

Affirmative  words  are  often,  in  their  operation,  negative  of  other 
objects  than  those  affirmed ;  and  in  this  case  a  negative  or  exclusive 
sense  must  be  given  to  them,  or  they  have  no  operation  at  all. 

It  cannot  be  presumed  that  any  clause  in  the  Constitution  is  in- 
tended to  be  without  effect;  and,  therefore,  such  a  construction  is 
inadmissible  unless  the  words  require  it. 


110  FORMATION   OP   THE   OFFICIAL   RELATION. 

To  enable  this  court,  then,  to  issue  a  mandamus,  it  must  be 
shown  to  be  an  exercise  of  appellate  jurisdiction,  or  to  be  necessary 
to  enable  them  to  exercise  appellate  jurisdiction. 

It  has  been  stated  at  the  bar  that  the  appellate  jurisdiction  may 
be  exercised  in  a  variety  of  forms,  and  that  if  it  be  the  will  of  the 
legislature  that  a  mandamus  should  be  used  for  that  purpose,  that 
will  must  be  obeyed.  This  is  true,  yet  the  jurisdiction  must  be 
appellate,  not  original. 

It  is  the  essential  criterion  of  appellate  jurisdiction,  that  it 
revises  and  corrects  the  proceedings  in  a  cause  already  insituted, 
and  does  not  create  that  cause.  Although,  therefore,  a  mandamus 
may  be  directed  to  courts,  yet  to  issue  such  a  writ  to  an  oflScer  for 
the  delivery  of  a  paper,  is  in  effect  the  same  as  to  sustain  an  orig- 
inal action  for  that  paper,  and,  therefore,  seems  not  to  belong  to 
appellate,  but  to  original  jurisdiction.  Neither  is  it  necessary  in 
such  a  case  as  this,  to  enable  the  court  to  exercise  its  appellate 
jurisdiction. 

The  authority,  therefore,  given  to  the  supreme  court,  by  the 
act  establishing  the  judicial  courts  of  the  United  States,  to  issue 
writs  of  mandamus  to  public  officers,  appears  not  to  be  warranted 
by  the  Constitution;  and  it  becomes  necessary  to  inquire  whether 
a  jurisdiction  so  conferred  can  be  exercised. 

The  question,  whether  an  act,  repugnant  to  the  Constitution, 
can  become  the  law  of  the  land,  is  a  question  deeply  interesting  to 
the  United  States;  but,  happily,  not  of  an  intricacy  proportioned 
to  its  interest.  It  seems  only  necessary  to  recognize  certain  prin- 
ciples, supposed  to  have  been  long  and  well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles  as,  in  their  opinion,  shall  most 
conduce  to  their  own  happiness  is  the  basis  on  which  the  whole 
'American  fabric  has  been  erected 

This  original  and  supreme  will  organizes  the  government,  and 
assigns  to  different  departments  their  respective  powers.  It  may 
stop  here  or  establish  certain  limits  not  to  be  transcended  by  those 
departments. 

The  government  of  the  United  States  is  of  the  latter  description. 
The  powers  of  the  legislature  are  defined  and  limited;  and  that 
those  limits  may  not  be  mistaken,  or  forgotten,  the  Constitution  is 
written. 

Certainly  all  those  who  have  framed  written  constitutions  con- 
template them  as  forming  the  fundamental  and  paramount  law 


MARBUBY   V.    MADISON.  Ill 

of  the  nation,  and,  consequently  the  theory  of  every  such  govern- 
ment must  be  that  an  act  of  the  legislature,  repugnant  to  the  con- 
stitution, is  void. 

This  theory  is  essentially  attached  to  a  written  constitution,  and 
is,  consequently,  to  be  considered,  by  this  court,  as  one  of  the  fun- 
damental principles  of  our  society.  It  is  not,  therefore,  to  be  lost 
sight  of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  Constitution,  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts  and 
oblige  them  to  give  it  effect  ?  Or,  in  other  words,  though  it  be  not 
law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law?  This 
would  be  to  overthrow  in  fact  what  was  established  in  theory; 
and  would  seem,  at  first  view,  an  absurdity  too  gross  to  be  in- 
sisted on.  It  shall,  however,  receive  a  more  attentive  considera- 
tion. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule  to  par- 
ticular cases,  must  of  necessity  expound  and  interpret  that  rule. 
If  two  laws  conflict  with  each  other,  the  courts  must  decide  on  the 
operation  of  each. 

So  if  a  law  be  in  opposition  to  the  Constitution ;  if  both  the  law 
and  the  Constitution  apply  to  a  particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  Constitution:  or  conformably  to  the  Constitution,  disregarding 
the  law;  the  court  must  decide  which  of  these  conflicting  rules 
governs  the  case.     This  is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  Constitution,  and  the  Con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature,  the 
Constitution,  and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  Constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say 
that  in  using  it  the  Constitution  should  not  be  looked  into  ?  That 
a  case  arising  under  the  Constitution  should  be  decided  without 
examining  the  instrument  under  which  it  arises  ? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  Constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are  they 
forbidden  to  read  or  to  obey  ? 


112  FORMATION   OP   THE    OFFICIAL   RELATION. 

There  are  many  other  parts  of  the  Constitution  which  serve  to 
illustrate  this  subject. 

From  these,  ....  it  is  apparent,  that  the  framers  of  the 
Constitution  contemplated  that  instrument  as  a  rule  for  the  gov- 
ernment of  the  courts,  as  well  as  of  the  legislature. 

'  Why  otherwise  does  it  direct  the  judges  to  take  an  oath  to  sup- 
port it  ?  The  oath  certainly  applies  in  an  especial  manner,  to  their 
conduct  in  their  official  character.  How  immoral  to  impose  it  on 
them,  if  they  were  to  be  used  as  the  instruments,  and  the  knowing 
instruments,  for  violating  what  they  swear  to  support ! 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  upon  this  subject.  It  is 
in  these  words :  "  I  do  solemnly  swear  that  I  will  administer  jus- 
tice without  respect  to  persons,  and  do  equal  right  to  the  poor  and 
to  the  rich;  and  that  I  will  faithfully  and  impartially  discharge  all 
the  duties  incumbent  on  me  as  according  to  the  best  of  my  abilities 
and  understanding,  agreeably  to  the  Constitution  and  laws  of  the 
United  States." 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to  the 
Constitution  of  the  United  States,  if  that  Constitution  forms  no 
rule  for  his  government?  If  it  is  closed  upon  him,  and  cannot  be 
inspected  by  him? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  take  this  oath,  becomes  equally  a 
crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  Constitution  is  itself 
first  mentioned;  and  not  the  laws  of  the  United  States  generally, 
but  those  only  which  shall  be  made  in  pursuance  of  the  Constitu- 
tion have  that  rank. 

Thus,  the  particular  phraseology  of  the  Constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed  to 
be  essential  to  all  written  constitutions,  that  a  law  repugnant  to 
the  Constitution  is  void;  and  that  courts,  as  well  as  other  depart- 
ments, are  bound  by  that  instrument. 

The  rule  must  be  discharged. 

See  also  Speed  v.  Common  Council  of  Detroit.  97  Mich.  198  infra.  In 
the  case,  however,  of  an  appointment  by  a  legislative  body,  the  action  ot 
the  legislative  body  in  making  an  appointment  may  be  reconsidered  In 
accordance  with  the  rules.    Attorney  Gen.  v.  Oakman,  126  Mich.  717. 


STATE    EX    EEL.    PliEMING    V.    CRAWFORD.  113 

STATE  EX  REL.  FLEMING  V.  CRAWFORD. 

Supreme  Court  of  Florida.    June,  1891. 
28  Fla.  441. 

The  alternative  writ,  the  declaration  in  causes  of  this  charac- 
ter, states  that  on  the  22nd  day  of  September,  of  the  present  year, 
the  relator,  Francis  P.  Fleming,  the  Governor  of  this  State,  he 
having  ascertained  and  determined  that  a  vacancy  existed  in  the 
office  of  United  States  Senator  from  this  State,  did,  in  exercise  of 
the  power  conferred  upon  him  by  law,  proceed  to  appoint  Robert 
H.  M.  Davidson,  a  citizen  of  the  State,  having  all  the  legal  qualifi- 
cations for  such  office,  to  be  United  States  Senator  from  Florida, 
to  fill  such  vacancy  until  the  meeting  of  the  next  legislature;  and 
that  to  evidence  and  give  effect  to  such  appointment,  the  petitioner 
prepared  and  signed  an  appointment  or  commission. 

That  thereupon  the  said  Governor  caused  the  said  appointment 
or  commission  to  be  transmitted  to  the  defendant,  John  L.  Craw- 
ford, Secretary  of  State,  of  this  State,  and  instructed  and  directed 
him  to  seal  it  with  the  great  seal  of  the  State  and  to  countersign 
the  same  as  due  and  proper  attestation  of  the  executive  act  of  such 
appointment,  to  be  delivered  to  said  Davidson  as  his  full  and 
complete  appointment  to  be  such  United  States  Senator,  and  the 
evidence  thereof,  but  that  the  said  Crawford,  Secretary  of  State, 
in  disregard  of  his  duty  in  the  premises,  failed  and  refused  to  seal 
the  said  appointment  or  commission  with  the  great  seal  of  the 
State  and  to  countersign  the  same,  and  has  failed  and  refused 
and  still  refuses  to  do  so  to  the  great  prejudice  and  injury  of  the 
people  of  the  State. 

That  afterwards,  on  or  about  October  13th,  1891,  the  said  Gov- 
ernor required  and  instructed  William  B.  Lamar,  the  Attorney 
General  of  the  State,  to  institute  proceedings  in  this  court  to  pro- 
cure the  writ  of  mandamus  to  require  the  said  Secretary  of  State 
to  seal  such  appointment  or  commission  with  such  seal  and  to  coun- 
tersign the  same,  but  the  Attorney  General  has  failed  and  refused 
and  still  refuses  to  institute  the  proceedings. 

The  writ  then  recites  the  prayer  of  the  petition:  that,  in  order 
to  protect  and  secure  the  public  interests  in  the  premises,  and  to 
enforce  and  carry  into  effect  his  said  executive  act  as  such  Gov- 
ernor, the  writ  may  issue,  and  in  compliance  with  such  prayer, 
3 


114  FORMATION    OF    THE    OFFICIAL    RELATION. 

directs  the  Secretary  of  State  to  seal  and  countersign  the  said  ap- 
pointment or  commission,  or  to  show  cause  on  the  day  and  at  the 
time  mentioned  therein,  why  he  had  not  done  so. 

On  the  29th  day  of  October,  at  the  time  stated  in  such  writ,  the 
Secretary  of  State  made  return  to  such  writ. 

Raney,  C.  J. : 

2nd.  It  appears  that  on  the  fourth  day  of  August  last  the  Grov- 
emor  issued  an  address  to  the  people  of  Florida,  announcing  as  his 
judgment  and  conclusion  that  the  action  of  the  joint  assembly  of 
the  legislature  taken  on  the  26th  of  May  last,  at  which  Mr.  Call 
received  the  votes  of  fourteen  senators  and  of  thirty-seven  repre- 
sentatives, and  Mr.  Mays  received  the  vote  of  one  representative, 
and  at  which  the  president  of  the  joint  assembly  announced  that 
Mr.  Call  having  received  a  majority  of  all  the  votes  of  the  joint 
assembly,  a  majority  of  all  the  members  elected  to  both  houses 
being  present  and  voting,  was  duly  elected  United  States  Senator 
for  the  term  beginning  March  4,  1891,  was  not  an  election  of  ]\Ir. 
Call,  and  the  reason,  as  is  shown  by  the  return  before  us,  is  that 
a  majority  or  quorum  of  the  senate  was  not  present  at,  and  did 
not  participate  in  such  election.  In  this  paper  the  Grovernor  also 
announced  that  he  could  not  "in  the  discharge  of  his  duty"  cer- 
tify that  Mr.  Call  was  elected,  and  gives  a  full  statement  of  the 
grounds  upon  which  his  conclusions  are  based.  On  the  22nd  day 
of  September  the  Governor  prepared  and  signed  the  appointment 
of  Mr.  Davidson  set  out  in  the  preceding  statement  of  the  case 
before  us,  and  it  will  be  observed  that  this  appointment  recites 
that  a  term  of  office  of  United  States  Senator  held  by  Mr.  Call 
had  expired  on  the  third  day  of  March  last  during  a  recess  of  the 
legislature,  and  that  thereby  a  vacancy  happened  in  such  office, 
and  that  no  Senator  had  been  chosen  by  the  legislature  to  fill  such 
vacancy,  and  that  the  legislature  was  not  in  session,  but,  on  the  con- 
trary, a  recess  thereof  existed  at  the  time,  and  upon  these  prem- 
ises so  recited,  the  Governor  by  virtue  of  the  authority  vested  in 
him  by  the  Constitution  of  the  United  States  appoints  Mr.  David- 
son to  be  United  States  Senator  from  Florida  until  the  next  meet- 
ing of  the  legislature. 

The  election  mentioned  is  set  up  by  respondent  as  a  bar  to  the 
allowance  of  a  peremptory  writ 

The  Constitution  of  the  United  States  has  not    .    .    .    given 


STATE   EX   BEL.    FLEMING    V.    CRAWFORD.  115 

to  this  court  the  power  to  pass  upon  the  question  of  the  legality 
of  the  election  of  a  United  States  Senator,  but  ...  it  has  ex- 
pressly excluded  from  it  the  right  to  do  so.  The  constitution  of 
the  State  has  not  attempted  to  confer  any  such  power  upon  us,  nor 
has  Congress,  nor  our  own  legislature;  nor  is  it  to  be  imagined 
that  any  such  attempt  would  be  made.  Whether  Mr.  Call  was 
legally  elected  by  the  legislature,  is  not  for  us  to  say. 

The  question  occurs  to  me,  however,  that  admitting  we  cannot 
decide  upon  the  legality  of  the  election,  is  it  not  a  sufficient  answer 
to  the  application  for  this  writ,  that  the  joint  assembly  is  shown 
to  have  done  what  it  in  fact  did  and  as  it  was  constituted,  and  to 
have  announced  through  the  presiding  officer  the  same  to  be  a  legal 
election.  It  is,  we  find,  after  the  most  careful  consideration, 
impossible  to  pursue  this  course  without  usurping  the  functions  of 
the  Senate Whether  the  constitution  gave  the  Gov- 
ernor power  after  the  adjournment  of  the  legislature  to  appoint, 
was  a  question  which  addressed  itself  primarily  to  the  Governor, 
and  however  erroneous  may  be  the  conclusion  which  he  has  reached, 
he  has  in  fact  made  a  decision  in  favor  of  his  power,  and  has  pro- 
ceeded to  the  extent  indicated  by  this  record,  in  making  an  appoint- 
ment to  fill  what  he  holds  to  be  a  vacancy  within  the  meaning  of 
that  clause  of  the  constitution  which  confers  upon  him  the  power 
of  appointment.  We  cannot  close  our  eyes  to  this  fact  as  an  exist- 
ing feature  in  the  case  before  us  any  more  than  to  the  action  of 
the  legislature  or  any  other  fact  shown  by  the  record.  It  cannot 
be  said  that  as  between  the  Governor  and  this  court,  it  was  not  a 
matter  for  his  decision.  We  cannot  hold,  then,  tliat  the  simple 
fact  of  the  legislature  having  taken  the  action  set  up  constitutes  a 
bar  to  the  proceeding  sought  at  our  hands,  without  usurping  the 
power  to  decide  that  this  action,  however  illegal  or  ineffectual  it 
may  be  held  by  the  senate,  precluded  any  action  by  the  Governor ; 
or,  in  other  words,  deprived  him  of  the  power  to  act.  To  decide 
this  question  would  be  to  do  what  the  constitution  has  devolved 
upon  the  senate  exclusively.  It  is  a  question  as  to  the  relative 
validity  of  legislative  and  executive  action,  of  which  we  have  no 
jurisdiction.  What  we  cannot  do,  the  Secretary  of  State  cannot 
do,  and  for  the  same  reason  that  the  power  has  not  been  placed  in 
him  unless  it  is  implied  by  the  imposition  upon  him  of  the  duty  to 
seal  and  countersign  this  commission,  if  such  duties  have  been  put 
upon  him  is  a  question  to  be  hereafter  considered.  He  cannot,  un- 
less the  power  to  do  so  is  implied  by  the  imposition  of  the  stated 


116  FORMATION    OF   THE   OFFICIAL   RELATION. 

duties,  decide  that  the  appointment  of  Mr.  Davidson  is  illegal,  or 
that  it  is  so  because  the  election  of  Mr.  Call  was  legal,  and  no 
vacancy  existed,  and  consequently  the  Governor  had  no  power  to 
appoint.  The  erroneous  exercise  of  power  by  either  the  Governor 
or  the  legislature  confers  no  power  on  either  the  Secretary  of  State 
or  us,  and  in  our  conduct  we  should  leave  the  action  of  each  to  be 
judged  of  by  the  Senate,  and  perform  such  duties  as  the  law  has 
placed  upon  us,  without  assuming  any  responsibility  not  imposed 
upon  us.  Knowledge  on  our  part  of  what  may  have  been  the 
decision  of  the  Senate  in  any  analogous  case  does  not  create  power 
or  jurisdiction  in  this  court.  Unless  there  is  in  the  nature  of  the 
act  of  sealing  and  countersigning,  the  implied  power  of  passing 
upon  the  legality  of  the  Governor's  fiction,  the  Secretary  has  no 
more  power  to  do  so  and  refuse  to  attest  the  Governor's  act  than 
he  would  have  had  to  refuse  Mr.  Call  a  certified  copy  of  the  pro- 
ceedings of  the  legislature,  of  whose  records  he  is,  under  sec.  21, 
Art.  IV.  of  the  constitution,  the  keeper,  had  it  been  his  judgment 
that  the  election  by  the  legislature  was  illegal  and  void.  In  cer- 
tifying and  giving  such  copy  he  performed  a  duty  imposed  upon 
him  which  in  nowise  involved  or  implied  what  his  personal  judg- 
ment of  the  validity  of  that  election  is,  and  the  law  does  not  give 
him  any  official  judgment  as  Secretary  of  State  in  the  premises. 

4th.  The  foregoing  conclusions  bring  us  to  the  question, 
whether  or  not  under  the  law  obtaining  in  this  State  it  is  the  duty 
of  the  Secretary  of  State  to  affix  the  seal  of  State  to  this  commis- 
sion and  countersign  the  same 

We  see  from  the  provision  of  our  own  constitution  .  .  .  that 
the  purpose  of  its  framers,  and  the  people  who  adopted  it,  was 
that  all  commissions  issued  by  the  State  should  be  sealed  with  the 
great  seal  of  State,  signed  by  the  Governor  and  countersigned  by 
the  Secretary  of  State.  That  it  is,  under  this  section,  the  official 
duty  of  the  officers  named  to  sign  and  countersign,  and  the  duty 
of  the  Secretary  of  State,  who,  by  another  section  of  the  same 
article,  is  made  the  custodian  of  the  seal,  and  whose  countersign- 
ing is  an  attending  testimony  of  the  authorized  use  of  such  seal, 
to  seal  all  commissions  emanating  from  the  State  is  the  only  in- 
terpretation of  the  organic  law  that  would  not  violate  common  rea- 
son. What  is  a  commission  in  the  sense  in  which  it  is  here  usedT 
It  is  written  authority  or  letters  patent  issued  or  granted  by  the 
government  to  a  person  appointed  to  an  office,  or  conferring  public 


STATE    EX    REL.    FLEMING    V.    CRAWFORD.  117 

authority  or  jurisdiction  upon  him.  ....  In  the  United 
States  V.  Le  Baron,  19  How.  73,  it  was  held  that  when  a  person 
has  been  nominated  to  an  office  by  the  President,  confirmed  by  the 
Senate,  and  his  commission  has  been  signed  by  the  President,  and 
the  seal  of  the  United  States  affixed  thereto,  his  appointment  to 
that  office  is  complete ;  that  Congress  might  provide,  as  it  had  done 
in  that  case,  that  certain  acts  should  be  done  by  the  appointee 
before  he  should  enter  upon  the  possession  of  the  office  under  his 
appointment.  That  such  acts  became  conditions  precedent  to  the 
complete  investiture  of  the  office,  but  they  were  to  be  performed 
by  the  appointee,  not  by  the  executive ;  that  all  the  executive  could 
do  to  invest  the  person  with  his  office  has  been  completed  when  the 
commission  has  been  signed  and  sealed;  and  when  the  person  has 
performed  the  required  conditions  his  title  to  enter  on  the  posses- 
sion of  the  office  is  also  complete.  Judge  Westcott,  speaking  for 
the  Justices  of  this  court  under  date  of  October  28th,  1875,  said: 
"When  the  commission  of  a  Justice  of  the  Peace  is  signed  and 
sealed,  all  that  is  necessary  to  his  investiture  of  the  office  is  com- 
plete. Under  the  practice  of  this  State,  all  the  conditions  as  to 
taking  oaths,  etc.,  are  complied  with  before  the  commission  issues. 
To  him,  upon  the  signing  and  sealing  of  the  commission  belongs 
the  office."    Advisory  Opinion,  15  Fla.,  735,  738-9. 

There  can  be  no  doubt  that  the  word  ' '  commissions, ' '  as  used  in 
the  above  section  of  our  constitution  at  least  includes  appointments 
to  office.  The  provision  in  the  constitution  of  the  United  States, 
that  the  executive  of  any  State  may  under  the  circumstances  there- 
in specified  **make  temporary  appointments"  of  Senators,  carries 
with  it  the  power  to  issue  written  evidence  of  any  such  appoint- 
ment, and  not  only  this,  but  it  implies  a  duty  to  do  so.  It  imports 
that  the  executive  authority  of  the  State  shall  execute  such  evi- 
dence of  the  authority  of  the  appointee  as  can  be  presented  to  the 
Senate  of  the  United  States  and  be  passed  upon  by  that  body. 
Such  credentials  must,  in  the  very  nature  of  things,  to  serve  these 
ends,  be  written  and  cannot  be  in  parol 

Any  written  appointment  of  a  person  to  an  office  by  the  Gov- 
ernor of  this  State  is  a  commission,  and  the  express  fiat  of  the  con- 
stitution is  that  all  commissions  issued  under  the  authority  of  the 
State  shall  be  signed  by  the  Governor,  and  sealed  with  the  great 
seal  of  the  State,  and  countersigned  by  the  Secretary  of  State. 
The  purpose  of  the  constitution  is  that  the  warrant  of  all  persons 
professing  to  represent  the  authority  of  the  State  shall  be  in  the 
form  indicated,  and  none  other.    The  authority'  to  appoint  to  an 


118  FORMATION   OP   THE   OFFICIAL   RELATION. 

office,  or  to  delegate  the  exercise  of  the  State's  power,  contemplates 
conformity  to  this  section  of  the  constitution,  in  making  the  ap- 
pointment ;  and  this  section  makes  it  the  duty  of  the  officers  named 
whenever  the  power  of  appointing  is  exercised,  to  see  that  the  com- 
mission or  written  evidence  of  the  appointment  is  signed  and  au- 
thenticated as  therein  directed. 

In  the  absence  of  legislation  by  Congress  providing  the  form 
in  which  the  appointment  of  a  Senator  shall  be  authenticated,  it 
is  unnecessary  to  discuss  the  power  of  Congress  to  legislate  upon 
the  subject.  If  it  has  such  power,  its  deprivation  of  it  is  no  rea- 
son why  the  State  cannot  exercise  it.  The  Senate  has  as  much 
power  to  enquire  into  the  legality  of  the  appointment  of  a  Senator 
by  the  executive  power  of  a  State,  as  into  that  of  the  election  of 
one  by  a  legislature.  If  it  has  not,  any  appointee  can  take  his  seat 
in  the  Senate  upon  the  assumption  that  the  Governor  has  appointed 
him  and  given  him  evidence  of  the  appointment  satisfactory  to  ex- 
ecutive discretion.  In  all  cases  of  any  alleged  executive  appoint- 
ment a  primary  question  for  the  Senate  is:  Has  the  executive 
authority  of  the  State  made  an  appointment?  Its  validity  as  an 
executive  appointment  cannot  be  investigated  until  it  is  satisfac- 
torily shown  that  there  has  been  an  appointment  in  fact  by  the 
executive.  Under  the  Constitution  and  laws  of  the  United  States 
and  of  this  State  there  is  no  known  mode  of  evidencing  or  proving 
that  an  appointment  of  a  United  States  Senator,  or  any  other  of- 
ficer, has  been  made  by  the  executive  of  this  State,  except,  or  unless 
and  until,  a  commission  has  been  duly  signed,  sealed  and  counter- 
signed in  accordance  with  the  above  quoted  provision  of  our  or- 
ganic law,  sec.  14,  Art.  IV.,  Constitution 

In  the  absence  of  any  provision  in  the  Constitution  or  statutes 
of  the  United  States,  when  the  Governor  of  this  State  wishes  to 
appoint  a  senator  the  only  legal  way  of  evidencing  his  act  so  as  to 
command  the  recognition  of  it  by  the  United  States  Senate  as  his 
official  act,  is  to  comply  with  the  formula  which  the  people  of  the 
State  have  in  our  constitution  declared  to  be  the  proper  form  for 
exercising  the  executive  power  of  appointing  to  office.  Any  ap- 
pointment of  a  Senator  not  thus  signed,  sealed  and  countersigned 
is  not  authenticated  in  the  manner  in  which  our  organic  law,  the 
only  law  regulating  the  subject,  provides,  and  is  not  entitled  to 
recognition  by  the  Senate  of  the  United  States  as  a  commission  or 
appointment  as  United  States  Senator  from  the  State  of  Florida, 
or  its  executive  authority  acting  for  the  State.     Assuming  that 


STATE    EX    REL.    FLEMING    V.    CRAWFORD.  119 

Congress  has  the  authority  to  prescribe  how  such  an  appointment 
should  be  authenticated,  until  it  does  so  the  only  reasonable  con- 
clusion is,  that  this  executive  act  of  the  State  government  shall 
be  evidenced  in  the  manner  provided  by  State  law  in  such  cases, 
and  the  only  appointments  or  commission  of  Senators  extended 
upon  the  proceedings  of  Congress  within  our  reach,  appear  to  have 
been  signed  by  the  Governor,  sealed  with  the  great  seal  of  State, 
and  attested  or  countersigned  by  the  Secretary  of  State.  We  have 
been  unable  to  find  anything  that  suggests  any  other  possible  way 
of  evidencing  the  executive  act  than  that  provided  by  provision 
of  our  own  organic  law,  nor  is  there  in  the  Constitution  of  the 
United  States  anything  that  prevents  the  State  from  regulating 
the  evidence  of  this  official  act,  at  least  until  Congress  shall  act  in 
the  premises.  The  Governor,  as  the  representative  of  the  State, 
and  the  chief  executive  power,  whose  duty  it  is  to  see  that  the  laws 
are  enforced,  is  seeking  to  have  an  act  done  by  him  as  her  chief 
magistrate,  authenticated  in  the  only  manner  that  it  can  be  done 
to  command  recognition  of  it  as  done  by  him,  and  in  our  judg- 
ment he  is,  as  her  representative,  entitled  to  have  it  done,  unless 
there  is  in  the  nature  of  the  act  required  of  the  Secretary  of 
State  something  involving  the  exercise  of  official  discretion. 

It  is  in  our  judgment  clearly  the  official  duty  of  the  Secretary 
to  affix  the  seal  of  the  state  to  the  appointment,  and  to  counter- 
sign or  attest  the  same  as  evidencing  the  official  act  of  the  execu- 
tive authority  of  the  State  in  appointing  a  Senator  in  the  Con- 
gress of  the  United  States,  and  this  duty  is  one  involving  no  of- 
ficial discretion  or  judgment  on  his  part. 

The  duty  devolved  upon  the  Secretary  of  State  in  the  case  be- 
fore us  is  merely  to  authenticate  the  commission  signed  and  pre- 
sented to  him  by  the  admitted  rightful  executive  of  the  State.  It 
is  purely  ministerial,  and  involves  no  exercise  of  discretion.  There 
is  from  the  very  nature  of  the  duty  no  place  in  it  for  the  exercise 
of  judgment.  It  involves  nothing  but  affixing  the  seal  and  signing 
officially.  It  is  entirely  impossible  for  anyone  to  infer,  from,  or  to 
find  implied  in,  the  simple  duty  of  authenticating  this  evidence 
of  an  appointment  of  an  office  known  to  exist,  and  which,  under 
certain  circumstances,  the  executive  of  the  State  has  authority  to 
fill,  the  further  duty  or  the  power  to  question  the  legality  of  the 
exercise  of  the  authority  to  appoint.  If  such  duty  or  power  of 
enquiry  exists  at  all,  then  it  covers  every  question  as  to  the  legality 
of  the  appointment  that  can  be  made.    It  extends  not  only  to  the 


120  FORMATION    OP    THE    OFFICIAL    RELATION. 

question  of  whether  or  not  there  is  a  vacancy,  but  also  the  ap- 
pointee's qualifications  as  to  age,  residence  or  citizenship.  If  it 
exists  at  all,  then  the  power  conferred  by  the  Constitution  of  the 
United  States  upon  the  executive  of  a  State  to  appoint  a  Senator 
is  not  subject  simply  to  the  exclusive  jurisdiction  of  the  Senate  as 
to  the  election  or  appointment  and  qualifications  of  its  members, 
but  to  another  jurisdiction,  which  is  the  judgment  of  the  Secre- 
tary of  State,  and  has  the  power  to  deny  to  the  Governor  the  right 
of  the  constitutional  evidence  that  he  has  made  an  appointment. 
If  this  power  obtains  in  the  case  of  an  appointment  of  a  Senator, 
it,  arising  as  it  must  and  alone  can  from  the  mere  duty  to  authen- 
ticate a  commission,  exists  also  in  the  case  of  every  justice  of  the 
peace,  county  commissioner,  or  other  county  officer,  and  of  every 
State  officer  of  whom  under  any  contingency  the  Governor  may 
have  the  power  to  make  an  appointment.  In  so  far  as  the  exist- 
ence of  the  power  is  concerned  there  is  no  possible  distinction  in 
the  several  cases.  To  say  that  it  would  not  be  exercised,  is  no 
answer,  but  is  an  assumption  of  the  existence  of  the  power.  Knowl- 
edge as  to  when,  or  by  whom  the  power,  if  its  exercise  is  recognized, 
will  be  used  or  renounced,  is  not  a  subject  for  our  consideration. 

In  authenticating  the  executive  appointment  of  a  Senator,  the 
Secretary  of  State  in  nowise  commits  himself  to  the  legality  of  such 
act.  The  Governor  is  not  responsible  to  the  Secretary,  nor  the  Sec- 
retary to  him.  If  the  act  is  illegal,  the  authentication  of  the 
Secretary  is  the  evidence  of  its  consummation;  it  proves  what  the 
Governor  has  done,  but  it  does  not  involve  the  Secretary  in  respon- 
sibility for  it.  The  Secretary's  certificate  to  the  transcript  of  the 
legislative  proceedings  furnished  Mr.  Call  is  official  evidence  of 
what  those  proceedings  in  fact  were,  and  nothing  more,  and  in 
nowise  implies  any  opinion  of  his  as  to  the  regularity  or  legality 
of  such  proceedings,  and  the  same  is  true,  no  less  nor  any 
more,  of  his  authentication  of  the  executive  act  in  question.  Nor 
does  the  appointment,  though  duly  authenticated,  have  any  effect 
upon  the  legality  of  Mr.  Call's  election,  or  towards  creating  any 
vacancy  which  does  not  otherwise  exist.  If  an  award  of  the  writ 
would  have  any  such  effect,  we  would,  and  upon  the  plainest  prin- 
ciples should,  refuse  to  award  it,  and  for  the  reason  that  Mr.  Call 
is  not  before  the  court,  nor  is  Mr.  Davidson,  and  mandamiis  is  not 
the  remedy  for  settling  a  conflict  for  an  office,  even  where  the  right 
to  decide  such  a  contest  is  in  the  court,  which  is  not  the  ease  here. 
People  v.  Farquer,  supra;  People  v.  Mayor,  etc.,  of  New  York,  3 


FRITTS    V.    KUHL.  121 

Johns.  Cases,  79 ;  State  ex  rel.  Vienna  v.  Hyams,  12  La.  Ann.  719, 
cited  in  17  La.  Ann.  163. 

7th.  Upon  the  case  made  by  the  pleadings,  our  conclusion  is: 
that  the  peremptory  writ  should  be  awarded  but,  in  view  of  the 
character  of  the  parties,  we  will  suspend  until  Monday  next  any 
formal  order  in  the  premises,  further  than  one  adjudging  the  re- 
turn of  the  respondent  insufficient  and  sustaining  the  demurrer 
thereto. 

There  is  no  vacancy  at  the  expiration  of  the  term  fixed  by  law  of  an 
officer  who  is  by  law  to  hold  over  until  his  successor  qualifies.  Such  an 
officer  holds  de  jure  until  the  qualification  of  his  successor.  See  State  v. 
Bulkley,  61  Conn.  287,  infra. 


4.    Power  to  Fill  Vacancies. 

FRITTS  V.  KUHL. 

Supreme  Court  of  New  Jersey.    February,  1889. 
51  New  Jersey  Law,  191. 

Van  Syckel,  J.  The  facts  which  have  occasioned  this  litiga- 
tion are  as  follows: 

On  the  15th  of  February,  1888,  a  vacancy  occurred  in  the  office 
of  president  judge  of  the  Hunterdon  Pleas  by  the  death  of  Mr. 
Sanderson.  At  the  time  of  his  death  the  senate  was  in  session,  and 
remained  in  session  until  the  30th  day  of  March,  1888. 

On  the  1st  day  of  March,  1888,  the  governor  nominated  the  de- 
fendant, Richard  S.  Kuhl,  to  the  office  of  president  judge  of  the 
Hunterdon  Pleas,  to  fill  the  said  vacancy.  The  senate  held  the 
nomination  until  the  20th  of  March,  and  then  refused  to  consent 
to  it.  No  other  nomination  to  this  office  was  made  by  the  governor 
to  the  senate  during  its  session.  In  the  meantime  the  chief  justice, 
under  a  statute  passed  in  February,  1888,  appointed  Judge  Bar- 
tine,  of  the  Somerset  Pleas,  to  preside  in  Hunterdon  and  perform 
the  duties  of  president  judge  of  Hunterdon  Pleas.  On  the  7th 
of  April,  1888,  during  the  recess  of  the  legislature,  and  while 
Judge  Bartine  was  presiding  in  Hunterdon,  the  governor  ap- 
pointed the  defendant  to  fill  the  vacancy  occasioned  by  the  death 
of  Judge  Sanderson. 


122  FORMATION   OP    THE    OFFICIAL   RELATION. 

The  information  is  filed  to  determine  whether  the  governor  had 
the  power,  during  the  recess  of  the  legislature,  to  fill  vacancy 
such  as  existed  in  this  case. 

Paragraph  1,  section  2,  article  7,  of  our  constitution  provides  as 
follows:  ** Justices  of  the  Supreme  Court,  chancellor,  judges  of 
the  Court  of  Errors  and  Appeals,  and  judges  of  the  Inferior  Court 
of  Common  Pleas,  shall  be  nominated  by  the  governor  and  ap- 
pointed by  him,  with  the  advice  and  consent  of  the  senate." 

Paragraph  12,  of  article  5,  provides  that  "when  a  vacancy  hap- 
pens during  the  recess  of  the  legislature  in  any  office  which  is  to 
be  filled  by  the  governor  and  senate,  or  by  the  legislature  in  joint 
meeting,  the  governor  shall  fill  such  vacancy,  and  the  commission 
shall  expire  at  the  end  of  the  next  session  o*  the  legislature,  unless 
a  successor  shall  be  sooner  appointed." 

If,  therefore,  within  the  meaning  of  this  paragraph  of  the  state 
constitution  ''this  vacancy  happened  during  the  recess  of  the  leg- 
islature," it  was  the  duty  of  the  governor  to  fill  it 

In  order,  therefore,  to  ascertain  its  true  meaning,  in  accord- 
ance with  the  recognized  rules  of  interpretation,  we  must  seek  for 
the  reason  and  spirit  of  it,  having  regard  to  the  effects  and  conse- 
quences of  the  construction  adopted,  and  the  source  from  which  the 
language  employed  was  derived.  Was  it  intended  merely  to  pre- 
vent those  offices  from  remaining  vacant,  which  become  so  during 
the  recess  of  the  legislature  by  some  casualty,  or  was  it  to  prevent 
any  of  the  enumerated  offices  from  remaining  vacant  during  the 
recess  of  the  senate,  without  regard  to  when  or  how  the  vacancy 
occurred  ? 

The  latter  clause  of  section  2,  article  2,  of  the  federal  constitu- 
tion, adopted  in  1787,  provides  that  "the  president  shall  have 
power  to  fill  up  all  vacancies  that  may  happen  during  the  recess 
of  the  senate,  by  granting  commissions  which  shall  expire  at  the 
end  of  their  next  session." 

During  the  administration  of  President  Monroe,  in  1823,  the 
question  arose  whether  he  had  the  power  to  fill,  during  the  recess 
of  the  senate,  a  vacancy  which  had  begun  during  the  preceding 
session  of  the  senate.  During  that  session  the  president  had  made 
a  nomination  which  the  senate  refused  to  confirm,  and  then  ad- 
journed, leaving  the  office  unfilled. 

Mr.  Wirt,  then  attorney  general,  advised  the  president  that  he 
had  power  to  fill  the  vacancy.    In  his  opinion,  he  says: 

"Had  this  vacancy  first  occurred  during  the  recess  of  the  sen- 


FRITTS   V.    KUHL.  123 

ate,  no  doubt  would  have  arisen  as  to  the  president's  power  to  fill 
it.  The  doubt  arises  from  the  circnmstanees  of  its  having  first 
occurred  during  the  session  of  the  seudte.  But  the  expression  used 
by  the  Constitution  is  'happen.'  *A11  vacancies  that  may  happen 
during  the  recess  of  the  Senate.'  The  most  natural  sense  of  this 
term  is,  'to  chance — ^to  fall  out — ^to  take  place  by  accident.'  But 
the  expression  seems  not  perfectly  clear.  It  may  mean,  'happen 
to  take  place;'  this  is  'to  originate;'  under  which  sense  the  Presi- 
dent would  not  have  the  power  to  fill  the  vacancy.  It  may,  also, 
without  violence  to  the  sense,  mean  'happen  to  exist,'  under  which 
sense  the  President  would  have  the  right  to  fill  it  by  his  temporary 
commission.    Which  of  these  two  senses  is  to  be  preferred  ? 

"The  first  seems  to  be  most  accordant  with  the  letter  of  the  Con- 
stitution; the  second  most  accordant  with  its  reason  and  spirit. 
The  meaning  of  the  Constitution  seems  to  me  to  result  in  this :  that 
the  President  alone  cannot  make  a  permanent  appointment  to  those 
oflfices;  that  to  render  the  appointment  permanent,  it  must  receive 
the  consent  of  the  Senate;  but  that,  whensoever  a  vacancy  shall 
exist  which  the  public  interests  require  to  be  immediately  filled, 
and  in  filling  which  the  advice  and  consent  of  the  Senate  cannot  be 
immediately  asked,  because  of  the  recess,  the  President  shall  have 
the  power  of  filling  it  by  an  appointment  to  continue  only  until 
the  Senate  shall  have  passed  upon  it;   or,  in  the  language  of  the 

Constitution,  till  the  end  of  the  next  session In 

reason,  it  seems  to  me  perfectly  immaterial  when  the  vacancy  first 
arose;  for,  whether  it  arose  during  the  session  of  the  Senate,  or 
during  their  recess,  it  equally  requires  to  be  filled.  The  Constitu- 
tion does  not  look  to  the  moment  of  the  origin  of  the  vacancy,  but 
to  the  state  of  things  at  the  point  of  time  at  which  the  President  is 
called  on  to  act." 

In  1885,  Attorney  General  Cushing,  referring  to  the  opinions  of 
his  predecessors  in  ofl&ce,  says: 

"They  have  thoroughly  demonstrated  and  conclusively  estab- 
lished, as  a  doctrine  of  administrative  law,  that  the  expression  of 
the  Constitution,  'all  vacancies  that  may  happen,'  signifies  'all 
vacancies  that  may  happen  to  exist  in  the  recess,'  or  'when  there 
happen  to  be  any  vacancies  in  the  recess. '  And  they  concur  in  the 
general  statement,  that  howsoever  a  vacancy  happens  to  exist,  if 
it  exist  it  may  be  filled  by  temporary  appointment  of  the  Presi- 
dent. They  all  agree  that  it  is  the  true  spirit  of  the  Constitution 
to  have  the  offices,  which  Congress  indicates  to  be  needful  by  creat- 


124  FORMATION    OP    THE    OFFICIAL    RELATION. 

ing  them,  filled,  though  provisionally,  rather  than  remain  vacant 
or  force  a  special  call  of  the  Senate. ' '    Vol.  7  of  Opinions,  p.  187. 


Ten  years  later.  Justice  Woods,  of  the  United  States  Supreme 
Court,  sitting  in  the  Georgia  Circuit,  refused  to  concur  in  the  opin- 
ion of  Judge  Cadwalader.    Farrow 's  Case,  3  Fed.  Rep.  112. 

And  Attorney  General  Devens,  in  1880,  after  an  elaborate  dis- 
cussion of  the  subject,  concluded  that  the  opinions  of  his  predeces- 
sors, and  the  practice  under  them,  had  settled  the  construction  of 
the  Constitution,  that  appointments  might  rightly  be  made  through 
the  vacancy  first  began  during  the  session  of  the  Senate,  and  he 
declared  that  the  contrary  view  of  Judge  Cadwalader  could  not 
be  considered  of  great  authority  or  weight  against  these  opinions, 
and  an  administrative  usage  which  commenced  as  early  as  the  time 
of  President  Monroe,  and  in  reference  to  which  such  usage  has  been 
invariable.    Vol.  16  of  Opinions,  p.  522. 

All  these  opinions  are  based  upon  the  idea  that  the  power  in- 
volves the  performance  of  a  duty,  intended  for  the  public  good, 
and  necessary  for  the  effective  administration  of  the  government, 
and  they  discard  the  notion  that  the  point  of  time  at  which  the 
vacancy  occurs  has  anything  to  do  with  the  power  of  the  President 
to  make  a  provisional  appointment. 


The  first  Constitution  of  this  State  contained  no  express  pro- 
vision for  filling  vacancies  in  State  offices,  which  might  exist  dur- 
ing the  recess  of  the  Legislature.  In  1802,  in  State  v.  Parkhurst, 
4  Halst.  528,  the  question  was  submitted  to  this  court,  whether  an 
appointment  to  the  office  of  clerk  of  Essex  county,  made  by  Gov- 
ernor Bloomfield  during  the  recess  of  the  Legislature,  to  fill  a 
vacancy  which  existed  in  that  office,  was  a  constitutional  exercise 
of  his  power. 

The  Constitution  provided  that  the  office  of  county  clerk  should 
be  filled  by  the  Legislature  in  joint  meeting,  and  the  Supreme 
Court  therefore  denied  the  power  of  the  executive.  Chief  Justice 
Kirkpatrick  dissented,  on  the  ground  that  by  the  eighth  section  of 
the  Constitution  the  Governor  was  vested  with  the  supreme  execu- 
tive power,  and  was  thereby  charged  with  the  duty  of  filling  all 
such  vacancies  during  the  recess  of  the  Legislature.  In  this  dis- 
senting opinion  the  Court  of  Errors  afterwards  unanimously  con- 
curred.   4  Halst.  537.  note. 


FRITTS   V.   KUHL.  125 

Thus  it  appears  that  when  the  framers  of  our  Constitution  of 
1844  were  assembled  to  consider  the  question  of  providing  for  the 
temporary  filling,  during  the  recess  of  the  Senate,  of  vacancies 
existing  in  those  offices  which  were  to  be  permanently  filled  by  the 
Governor,  with  the  advice  and  consent  of  the  Senate,  or  by  the 
Legislature  in  joint  meeting,  they  had  in  view  the  fact  that  the 
power  had  been  denied,  and  they  wisely  made  express  provision 
for  it  in  the  fundamental  law. 

That  they  carefully  considered  the  language  which  should  be 
used  in  incorporating  into  the  new  Constitution  an  express  pro- 
vision for  the  temporary  filling  of  vacancies  in  State  offices  during 
the.  recess  of  the  Legislature,  cannot  be  doubted.  Instead  of  at- 
tempting to  formulate  for  themselves  a  clause  which  would  express 
their  purpose,  they  prudently  adopted  the  language  of  that  clause 
of  the  Federal  Constitution  w^hich  authorizes  the  President  to  fill 
vacancies  which  happen  during  the  recess  of  the  Senate. 

The  question,  therefore,  which  confronts  us  is  far  different  from 
that  submitted  to  Attorney  General  Wirt  and  that  passed  upon 
by  Judge  Cadwalader. 

It  is  a  safe  rule  of  construction  that  when  the  convention,  in 
framing  the  organic  law  of  the  State,  thought  proper  to  borrow 
provisions  from  the  Constitutions  of  other  States,  which  provisions 
had  already  received  a  judicial  construction,  they  adopted  them  in 
view  of  such  construction  and  acquiesced  in  its  correctness.  Peo- 
ple  V.  Coleman,  4  Cal.  48. 

In  1844,  there  had  been  no  judicial  exposition  of  this  language 
of  the  Federal  Constitution,  but  the  reason  which  underlies  the 
decisions  in  the  cases  cited  make  them  applicable  to  the  case  be- 
fore us. 

In  State  v.  Kelsey,  15  Vroom  1,  this  court  declared  that  '*a 
statute  of  uncertain  meaning,  which  has  been  enforced  in  a  certain 
sense  for  a  long  series  of  years  by  the  different  departments  of 
government,  will  be  judicially  construed  in  that  sense."  This  rule 
has  been  held  to  apply,  with  equal  reason,  in  expounding  the  Con- 
stitution. Briscoe  v.  Bank,  11  Pet.  257,  318;  Moers  v.  Beading, 
21  Penna.  St.  188. 

Not  only  has  this  language  acquired,  by  long  established  usage. 
a  well  settled  meaning  in  the  exercise  by  the  President  of  his  func- 
tions under  the  Federal  Constitution,  but  it  has  received  a  like  in- 


126  FORMATION   OP   THE    OFFICIAL    RELATION. 

terpretation  in  the  conduct  of  our  State  government  since  187^, 
without  challenge,  until  this  information  was  filed. 

The  argument  of  those  who  deny  the  power,  that  it  will  tend  to 
deprive  the  Senate  of  their  just  participation  in  appointments  to 
office,  is  not  of  controlling  force.  It  is  not  logical  to  argue  from 
an  abuse  of  power  to  a  negation  of  it.  Every  authority,  however 
indispensable,  may  be  the  subject  of  abuse.  Undoubtedly  the  Gov- 
ernor may  abuse  this,  as  he  may  any  other  power  entrusted  to  him, 
but  the  argument  is  equally  cogent,  that  the  Senate  may  arbitrarily 
refuse  to  consent  to  every  nomination  made  by  the  Governor,  and 
leave  him  powerless  to  execute  the  laws,  unless  he  will  accede  to  its 
demands.  The  consequences  likely  to  flow  from  a  denial  of  the 
Governor's  power  are  much  more  to  be  deprecated  than  can  result 
from  conceding  it. 

The  power  of  the  Governor  to  appoint,  where  vacancies  happen 
during  the  recess,  extends  not  only  to  those  offices  filled  by  the 
Governor  with  the  advice  of  the  Senate,  but  also  to  those  filled  by 
the  Legislature  in  joint  meeting.  The  failure  to  fill  the  latter  dur- 
ing the  session  can  result  from  no  breach  of  duty  on  the  part  of 
the  executive.  The  power  of  the  Governor,  after  the  adjournment, 
to  fill  a  vacancy,  must  be  the  same  in  both  cases ;  if  he  cannot  ap- 
point in  the  one  case,  he  cannot  in  the  other;  and  this  shows  that 
it  was  not  intended  to  put  a  limitation  upon  his  power  to  guard 
against  an  abuse  of  his  prerogative. 

The  possibility  of  abuse  loses  its  significance  the  moment  we 
distinguish  between  power  and  duty.  The  question  of  power  alone 
can  be  considered  by  this  court.  For  willful  breach  of  official  duty, 
or  abuse  of  the  power  committed  to  him,  the  Governor  is,  like  other 
civil  officers,  liable  to  impeachment,  and  must  answer  to  the  tri- 
bunal erected  under  the  Constitution  for  the  trial  of  such  cases. 
Even  though  the  Governor  should  be  guilty  of  a  breach  of  duty 
in  refusing  to  send  any  nomination  at  all  to  the  Senate  during  its 
session,  it  would  be  none  the  less  within  his  power,  and  his  duty 
after  the  adjournment,  to  fill  the  vacancy.  In  that  case,  the  im- 
peachable conduct  would  be  his  willful  refusal  to  advise  with  the 
Senate,  and  not  his  act  in  filling  the  vacancy  in  the  after  recess. 

The  making  of  the  appointment  in  controversy  was,  in  my  judg« 
ment,  a  legal  exercise  by  the  (Governor  of  his  constitutional  pre- 
rogative. The  propriety  of  the  appointment  of  Mr.  Kuhl,  after 
his  rejection  by  the  Senate,  was  a  question  for  the  Gtovemor  alone. 


PEOPLE  EX   REL.    SWEET    V.    WARD.  127 

This  court  has  no  right  to  instruct  the  Governor  as  to  matters  which 
involve  his  duty  only  and  not  his  power.  We  cannot  know  the  cir- 
cumstances which  influenced  his  action,  and  must  presume  that  he 
acted  rightly. 

There  should  be  judgment  for  the  respondent. 

See  note  to  State  v.  Bulkley,  61  Conn.  287  infra. 


PEOPLE  EX  REL.  SWEET  V.  WARD. 

Supreme  Court  of  California.    May,  1895. 
107  California  Reports  236. 

Henshaw,  J.    Appeal  from  the  judgment. 

The  facts,  about  which  there  is  no  controversy,  are  as  follows: 
Ward,  the  appellant,  was  duly  elected  district  attorney  of  San 
Diego  county  for  the  term  commencing  January  2,  1893.  He  quali- 
fied and  entered  upon  the  discharge  of  the  duties  of  the  ojBSce.  At 
the  general  election  in  November,  1894,  and  during  Ward's  term 
and  incumbency,  William  Darby  was  elected  to  succeed  him  pur- 
suant to  section  60  of  the  County  Government  Act  of  1893,  Darby 
duly  qualified  upon  November  24th,  and  on  December  15  of  the 
same  year  died. 

Section  60  of  the  County  Government  Act  of  1891  provided  that 

*'all  elective  county  officers shall  be  elected  at  the 

general  election  to  be  held  in  November,  1892,  and  every  two  years 
thereafter and  shall  take  effect  at  12  o'clock  mer- 
idian of  the  first  Monday  after  the  first  day  of  January  next  suc- 
ceeding  their   election All   officers   elected   under 

the  provisions  of  this  act  shall  hold  office  until  their  successors  are 
elected  or  appointed  and  qualified. ' ' 

Such  was  the  law  when  Ward  was  elected  and  when  the  questions 
in  litigation  arose. 

After  Darby's  death,  and  on  the  2nd  day  of  January,  1895,  the 
board  of  supervisors,  as  then  constituted,  appointed  Ward  to  fill 
the  vacancy  caused  by  the  death  of  Darby,  and  to  be  district  at- 
torney "for  the  term  of  office  to  be  taken  at  12  M.  on  the  seventh 
day  of  January,  1895;"  and  upon  the  day  of  his  appointment 
Ward  qualified  in  due  form  as  the  appointee  to  succeed  Darby. 


128  FORMATION    OP    THE    OFFICIAL    RELATION. 

At  3  o'clock  P.  M.  on  January  7th,  1895,  the  personnel  of  the 
board  having  been  changed  by  the  outgoing  of  two  old  and  the 
incoming  of  two  new  supervisors  at  noon  of  that  day,  the  board  as 
then  constituted  declared  a  vacancy  to  exist  in  the  office  of  district 
attorney,  and  appointed  the  relator  to  fill  the  same  during  the  term 
for  which  Darby  had  been  elected,  and  Sweet  in  due  course  quali- 
fied. Sweet  made  demand  upon  Ward  for  the  office  on  January  10. 
1895,  and,  upon  Ward's  refusal  to  surrender  it,  this  action  was 
brought  to  determine  their  conflicting  claims. 

By  appellant  it  is  contended:  1.  That  no  vacancy  in  the  office 
resulted  from  the  death  of  Darby ;  2,  That  if  a  vacancy  did  result 
it  occurred  eo  instanti  upon  the  death  of  Darby,  and  it  was  then 
the  right  and  duty  of  the  board  of  supervisors  to  fill  the  vacancy, 
which  they  duly  did  by  the  appointment  of  himself.  Under  his 
first  contention  he  asserts  a  right  to  hold  until  his  successor  is 
elected  or  appointed  and  qualified.  Under  his  second  contention 
his  right  is  based  upon  the  theory  of  a  vacancy,  and  his  appoint- 
ment to  serve  out  Darby's  term. 

1.  It  is  not  to  be  questioned  but  that  if  Darby  had  lived,  and 
at  noon  of  the  seventh  day  of  January,  1895,  had  demanded  the 
office  of  Ward,  he  would  have  been  entitled  to  enter  it,  and  Ward's 
term  would  thus  and  then  have  ceased  and  determined.  But  was 
a  demand  by  Darby  necessary  to  determine  Ward's  tenure?  The 
answer  is  found  in  the  language  of  the  statute.  Ward,  by  section 
60  of  the  act  quoted,  and  by  section  879  of  the  Political  Code,  was 
entitled  to  hold  absolutely  until  noon  of  January  7th,  and  con- 
tingently after  that  date,  if  no  successor  had  been  elected  or  ap- 
pointed and  qualified.  He  had  a  fixed  tenure  and  a  contingent 
term.  (People  v.  Edwards,  93  Cal.  153.)  The  election  and  quali- 
fication of  Darby  as  Ward's  successor  (and  not  a  demand  by  him 
for  the  office)  ipso  facto  cut  off  Ward's  contingent  term,  and  lim- 
ited him  to  the  absolute  period,  that  is,  until  noon  of  January  7th. 
(State  V.  Bemenderfer,  96  Ind.  374;  State  v.  Seay,  64  Mo.  89;  27 
Am.  Rep.  206;  Commonwealth  v.  Hanley,  9  Pa.  St.  513;  Gosman 
v.  State,  10  Ind.  206;  People  v.  Supervisors  of  Barnett  Township. 
100  111.  332 ;  Mechem  on  Public  Offices,  sec.  401 ;  Throop  on  Public 
Offices,  sec.  329.)  The  word  "successor"  is  used  in  our  statutes, 
as  in  the  books,  in  the  twofold  sense  of  the  one  entitled  to  succeed, 
and  the  one  who  has  in  fact  succeeded.  It  is  here  employed  in  the 
former  acceptation. 

The  Legislature  may  provide  that  certain  acts,  happenings,  or 


PEOPLE   EX    REL.    SWEET    V.    WARD.  129 

events  shall  create  a  vacancy  in  law,  while  its  greatest  wisdom  can- 
not prevent  the  occurrence  of  vacancies  in  fact.  The  death  of 
the  incumbent  creates  a  vacancy  as  a  matter  of  course,  and  without 
any  expression  from  the  Legislature  upon  the  question.  But  when, 
for  example,  the  Legislature  declares  that  the  office  of  a  sheriff 
shall  become  vacant  when  he  stands  committed  for  sixty  days  for 
not  paying  over  money  received  by  him  (Pol,  Code,  sec.  4186), 
such  a  vacancy  may  be  described  as  a  vacancy  in  law. 

So  here,  the  Legislature  having  in  effect  provided  that  "Ward's 
term  upon  the  election  and  qualification  of  Darby  came  to  an  end 
at  noon  of  January  7,  1895,  a  vacancy  in  law  resulted  when  Darby 's 
death  prevented  his  succession.  It  is  true  the  office  would  not  be 
without  an  incumbent,  since  Ward,  as  locum  tenens,  could  hold 
until  the  supervisors  by  appropriate  action  appointed  to  the  va- 
cancy, but,  as  has  been  said,  Ward 's  incumbency  gave  him  no  right 
to  a  fixed  and  definite  tenure. 

This  vacancy is  in  the  nature  of  an  interregnum. 

It  arose  when  upon  noon  of  January  7,  1895,  Darby  by  death  was 
not  able  to  take  his  office.  (French  v.  County  of  Santa  Clara,  69 
Cal.  519 ;  People  v.  Taijlor,  57  Cal.  622.)  The  expiration  of  Ward's 
term  alone  did  not  create  the  vacancy.  It  was  the  election  and 
qualification  of  his  successor,  and  the  expiration  of  the  term,  which 
worked  the  result.  It  is  another  instance  of  a  vacancy  contem- 
plated by  statute,  but  not  expressed  in  section  996.  (People  v. 
Mizner,  7  Cal.  519-23.) 

2.  The  vacancy  which  occurred  having  arisen  at  noon  of  Janu- 
ary 7th,  it  remains  to  be  considered  whether  the  action  of  the 
board  of  supervisors  upon  January  2d  was  legal  or  illegal,  and  as 
this  is  determined,  so  will  the  claim  of  appellant  stand  or  fall. 

The  board,  then,  undertook  to  fill,  not  an  existing  vacancy,  but 
one  soon  to  exist;  not,  however,  a  contingent  or  possible  vacancy, 
but  one  which  in  the  nature  of  things  was  certain  to  arise,  though 
at  a  future  date,  and  at  a  time  when  in  legal  contemplation,  and 
in  fact,  a  different  board  would  be  in  control  of  the  county's  af- 
fairs. Briefly,  the  act  of  the  board  was  to  make  an  appointment  to 
take  effect,  and  to  fill  a  vacancy  to  arise,  in  the  term  of  its  suc- 
cessor. 

We  are  not,  therefore,  here  concerned  with  the  question  of  the 

power  to  appoint  to  fill  an  anticipated  vacancy  by  the  person  or 

body  which,  as  constituted,  is  authorized  to  fill  the  vacancy  when 

it  occurs,  but  solely  with  the  question  of  an  appointment  made  to 

9 


130  FORMATION   OP   THE   OFFICIAL   RELATION. 

fill  a  prospective  vacancy,  which  will  arise  at  a  time  when  there 
will  have  been  a  change  in  the  appointing  power. 

Upon  the  election  and  qualification  of  Darby  his  right  to  the 
office  for  the  term  commencing  at  noon  of  January  7th  vested  im- 
mediately, and  Ward's  contingent  right  to  an  additional  term  was 
cut  off.  Upon  the  divesture  of  that  right  by  death  it  existed  in  no 
one,  and  there  was  no  revivor  of  Ward's  contingent  right  to  an 
extended  term. 

The  power  of  the  board  of  supervisors  in  dealing  with  such  mat- 
ters is  drawn  from  section  25,  subdivision  21,  of  the  County  Gov- 
ernment Act  of  1891,  and  it  is  limited  to  the  filling  of  vacancies. 
That  power  could  properly  be  exercised  only  upon  an  existing  va- 
cancy. The  board  could  by  its  action  neither  create  a  vacancy,  nor 
by  anticipation  fill  one,  which  was  to  a  rise  in  futuro  during  the 
term  of  its  successor. 

Mechem  lays  down  the  rule  in  the  following  language,  and,  so 
far  as  our  investigations  have  extended,  its  soundness  is  not  op- 
posed by  any  dissenting  voice:  "The  appointing  power  cannot 
forestall  the  rights  and  prerogatives  of  their  own  successors  by 
appointing  successors  to  offices  expiring  after  their  power  to  ap- 
point has  itself  expired."  (Mechem  on  Public  Offices,  sec.  133.) 
This  is  the  language  of  Ivy  v.  Lush,  11  La.  Ann.  486,  while  to  like 
effect  are  the  cases  of  State  v.  Meehan,  45  N.  J.  L.  189,  and  State 
V.  Love,  39  N.  J.  L.  14. 

We  conclude,  therefore:  1.  That  a  vacancy  arose  in  the  office 
of  district  attorney  by  reason  of  the  election,  qualification,  and 
death  of  Darby ;  2.  That  this  vacancy  existed  at  and  after  noon  of 
the  seventh  day  of  January,  1895,  and  not  before ;  3.  That  the  at- 
tempt of  the  first  board  of  supervisors  to  fill  the  vacancy  upon 
January  2nd  was  in  excess  of  its  power  and  void;  4.  That  the 
vacancy  was  properly  filled  by  the  existing  board  at  3  o  'clock  P.  M. 
of  January  7,  1895. 

Wherefore,  it  follows  that  the  judgment  appealed  from  is  af- 
firmed. 

Temple,  J.,  McFarlai«),  J.,  Van  Fleet,  J.,  Garoutte,  J.,  Har- 
rison, J.,  and  Beatty,  C.  J.,  concurred. 


PEOPLE  EX  BEL.  INSURANCE   CO.  V.   WILLIAMS.  131 

III.    Acceptance  op  Office  and  Qualification. 

1.    Obligation  to  Accept. 

PEOPLE  EX  REL.  INSURANCE  COMPANY  V.  WILLIAMS. 

Supreme  Court  of  Illinois.    1893. 
145  III.  573. 

This  is  an  original  proceeding  for  mandamus  to  compel  the  re- 
spondent, Thomas  C.  Williams,  to  accept,  assume  and  take  upon 
himself  and  execute  the  office  of  town  clerk  of  the  town  of  Mount 
Morris,  in  the  county  of  Ogle,  in  this  State,  to  take  and  subscribe 
the  oath  of  office,  and  to  file  bond,  as  required  by  law. 

Mr.  Justice  Shope  delivered  the  opinion  of  the  Court : 
The  principal  question  presented  is,  whether  mandamus  will  lie 
to  compel  acceptance  of  a  municipal  office  by  one  who,  possessing 
the  requisite  qualifications,  has  been  duly  elected  or  appointed  to 
the  same. 

It  is  stated  by  text  writers  that  no  case  has  arisen  in  this  country 
involving  this  precise  question  (Merrill  on  Mandamus,  sec.  145; 
Dillon  on  Mun.  Cor.,  sec.  162),  and  in  the  researches  of  counsel, 
and  our  own  examination,  none  have  been  found.  There  are,  how- 
ever, a  number  of  cases  where  analogous  questions,  involving  the 
same  principle,  have  been  elaborately  discussed  and  determined 
in  the  State  and  Federal  courts.  Very  many  English  cases  are 
found,  in  which  it  has  been  held  that  it  was  a  common  law  offense 
to  refuse  to  serve  in  a  public  office,  to  which  one  has  been  elected 
or  appointed  under  competent  authority :  and  that  mandamus  will 
lie  in  such  case  to  compel  the  taking  of  the  official  oath,  and  en- 
tering upon  the  discharge  of  the  public  duty. 

The  common  law  of  England,  so  far  as  the  same  is  applicable 
and  of  a  general  nature,  and  all  statutes  or  acts  of  the  British 
Parliament  made  in  aid  of  and  to  supply  the  defects  of  the  com- 
mon law  prior  to  the  fourth  year  of  James  I.  (excepting  certain 
statutes),  and  which  are  of  a  general  nature  and  not  local  to  that 
kingdom,  are,  by  our  statutes,  made  the  rule  of  decision  until  re- 
pealed by  the  Legislature.  Thereby  the  great  body  of  the  English 
common  law  became,  as  far  as  applicable,  in  force  in  this  State. 

It  is  held  in  numerous  English  cases,  that  by  the  common  law  it 


132  FORMATION    OP    THE    OFFICIAL   RELATION. 

was  deemed  the  duty  of  every  person  having  the  requisite  qualifica- 
tion, elected  or  appointed  to  a  public  municipal  oflSce,  to  accept 
the  same,  and  that  a  refusal  to  accept  such  oflSce  was  punishable  at 
common  law. 

Citation   from   cases   will   not  be   necessary;    so 

uniformly  has  the  doctrine  been  maintained,  that  there  is  a  legal 
duty  to  accept  an  office  when  duly  elected  or  appointed,  in  a  public 
or  municipal  corporation,  at  common  law,  and  that  mandamus  is 
an  appropriate  remedy  in  cases  of  refusal,  that  it  is  accepted  by 
all  the  text  writers. 

It  follows,  necessarily,  that  if  to  refuse  the  office  is  a  common 
law  offense,  and  punishable  as  such,  that  a  legal  duty  attaches  to 
the  person  to  take  upon  himself  the  office,  which  may  now  be  en- 
forced by  mandamus. 

While  offices  of  this  class,  in  England,  were  accepted  as  a  burden, 
they  have  not  been  generally  so  regarded  in  this  country.  Under 
our  system  of  local  government,  even  the  smallest  offices  are  gen- 
erally accepted,  either  because  they  are  supposed  to  lead  to  those 
which  bring  higher  honors  and  greater  emoluments,  or  because  of  a 
sense  of  duty.  To  this  fact,  and  perhaps  to  the  prevalent  but  mis- 
taken idea,  that  one  holding  a  public  office  may  resign  at  will,  may 
be  attributed  the  want  of  decisions  in  this  country  upon  the  precise 
question  at  issue. 

The  reason  assigned  in  Rex.  v.  Larwood,  1  Salk,  168,  for  the  pub- 
lic duty  is,  **that  the  King  hath  an  interest  in  every  subject  and  a 
right  to  his  service,  and  that  no  man  can  be  exempt  from  the  office 
of  sheriff  but  by  act  of  Parliament  or  letters  patent. ' '  Under  our 
form  of  government,  the  principle  applies  with  even  greater  force 
than  under  a  monarchy.  In  a  republic  the  power  rests  in  the 
people,  to  be  expressed  only  in  the  forms  of  law.  And  if  the  duty, 
representative  of  the  common  welfare,  is  disregarded,  society  may 
suffer  great  inconvenience  and  loss,  before,  through  the  methods 
of  legislation,  the  evil  can  be  corrected.  Upon  a  refusal  of  officers 
to  perform  their  functions,  effective  government,  pro  tanto,  ceases. 
All  citizens  owe  the  duty  of  aiding  in  carrying  on  the  civil  depart- 
ments of  government.  In  civilized  and  enlightened  society  men 
are  not  absolutely  free.  The  burden  of  government  must  be  borne 
as  a  contribution  by  the  citizen  in  return  for  the  protection  af- 
forded.    The  sovereign,  subject  only  to  self-imposed  restrictions 


PEOPLE  EX  REL.   INSURANCE   CO.   V.   WILLIAMS.  133 

and  limitations,  may,  in  right  of  eminent  domain,  take  the  property 
of  the  citizen  for  public  use.  He  is  required  to  serve  on  juries,  to 
attend  as  witness,  and  without  compensation,  is  required  to  join 
with  posse  comitatus  at  the  command  of  the  representative  of  the 
sovereign  power.  He  may  be  required  to  do  military  service  at 
the  will  of  the  sovereign  power.  These  are  examples  where  pri- 
vate right  and  convenience  must  yield  to  the  public  welfare  and 
necessity.  It  is  essential  to  the  public  welfare,  necessary  to  the 
preservation  of  the  government,  that  public  affairs  be  properly  ad- 
ministered ;  and  for  this  purpose  civil  officers  are  chosen,  and  their 
duties  prescribed  by  law.  A  political  organization  must  necessarily 
be  defective,  which  provides  no  adequate  means  to  compel  the  ob- 
servance of  the  obvious  duty  of  the  citizen,  chosen  to  office,  to 
enter  upon  and  discharge  the  public  duty  imposed  by  its  laws,  and 
necessary  to  the  exercise  of  the  functions  of  government. 

It  is  admitted  by  the  demurrer,  that  the  respondent  was  legally 
appointed  town  clerk  of  the  town  of  Mount  Morris.  The  office  is 
connected  with,  and  necessary  to,  the  levy  of  taxes  to  carry  on  the 
municipal  concerns  of  the  town  and  administration  of  its  local 
jurisdiction.  It  is  shown,  that  there  was  a  public  necessity,  as  well 
as  that  relators  had  a  private  interest  in  the  performance  of  the 
duties  of  that  office.  No  election  had  been  held  in  the  town  since 
the  annual  town  meeting  of  1891.  Numerous  persons  had  been 
appointed  to  said  office,  but  it  remained  vacant,  and  the  duties 
consequently,  undischarged.  It  is  admitted  by  the  demurrer,  also, 
that  claims  against  the  town,  in  favor  of  the  relator,  to  a  large 
amount,  had  been  audited  by  the  board  of  town  auditors  of  said 
town,  and  allowed,  and  certificate  thereof  duly  made,  as  provided 
by  law,  but  that  the  same  could  not  be  delivered  to  or  filed  with 
the  town  clerk,  because  of  such  vacancy  in  said  office,  nor  could 
the  aggregate  amount  therefor  be  certified  to  the  county  clerk  of 
said  county,  to  be  levied  and  collected  as  other  town  taxes.  It  is 
conceded,  that  the  respondent  was  eligible  to  the  office;  that  a 
vacancy  therein  existed;  that  he  was  appointed  conformably  to 
the  law,  and  duly  notified  thereof. 

It  is  insisted,  that  the  Legislature  having  provided  a  penalty 
for  the  refusal  to  accept  the  office,  that  that  remedy  is  exclusive, 
and  that  a  payment  of  the  penalty  imposed  was  intended  to  be  in 
lieu  of  the  service.  We  cannot  concur  in  this  view.  The  purpose  of 
imposing  the  penalty,  was  to  enforce  the  acceptance  of  the  office  and 
performance  of  its  duties,  and  the  statute  cannot  be  construed  as 


134  FORMATION   OP   THE   OFFICIAL   RELATION. 

intending  that  the  person  chosen  should  be  discharged  from  the 
duty  by  payment  of  the  penalty,  and  thereby  the  purposes  of  the 
creation  of  the  office  frustrated,  and  the  public  duty  remain  un- 
performed. Authorities  supra.  It  is  to  be  presumed  that,  had  the 
Legislature  intended  that  the  payment  of  the  fine  should  be  in  lieu 
of  the  service,  they  would  have  so  enacted,  and  not  having  done  so, 
the  duty  remains,  notwithstanding,  the  imposition  of  the  fine  or 
penalty.    High,  Ext.  L.  Rem.,  334,  and  supra. 

We  are  of  opinion  that  the  respondent  ought  to  be  required 
to  accept  the  office  of  town  clerk  of  said  town,  to  which  he  has  been 
duly  and  legally  appointed,  to  take  and  file  the  oath  as  such  town 
clerk,  as  provided  by  law,  and  to  discharge  the  duties  of  said  office, 
and  a  peremptory  writ  of  mandamus  is  awarded  accordingly. 

Peremptory  writ  awarded. 


2.    Mow  Acceptance  of  Office  is  Manifested. 

STATE  EX  REL.  CARPENTER  V.  THE  SUPERVISORS  OF 
THE  TOWN  OP  BELOIT. 

Supreme  Court  of  Wisconsin.    June,  1866. 
21  Wisconsin  282. 

Application  for  a  mandamus. 

A  rule  having  been  granted  in  this  cause,  requiring  the  super- 
visors of  the  town  of  Beloit  to  show  cause  why  they  should  not  be 
compelled  to  levy  a  certain  tax,  Charles  Peck,  as  chairman  of  said 
board,  answered  that  at  the  annual  town  meeting  in  April,  1865. 
one  Ruble  and  one  Parish  were  elected  supervisors  of  said  town; 
that  each  of  them  neglected  and  refused  to  qualify,  and  declined 
and  refused  to  accept  the  office ;  that  neither  of  them  had  since  said 
election  ever  qualified,  accepted  or  entered  upon  the  discharge  of 
the  duties  of  said  office,  or  acted  or  assumed  to  act  as  such  super- 
visor: that  at  the  time  of  the  service  of  said  rule  to  show  cause, 
said  Peck  was  and  from  thence  continued  to  be,  the  only  supervisor 
of  said  town ;  and  that  he  had  no  authority  to  levy  any  tax. 

Demurrer  to  the  answer. 

Dixon,  C.  J.    It  is  of  the  very  essence  of  this  proceeding  that 


SPEED  V.   COMMON   COUNCIL  OF   DETROIT.  135 

there  be  some  officer  or  officers  in  being,  having  the  power  and 
whose  duty  it  is  to  perform  the  act.  If  there  be  no  such  officers, 
it  is  obvious  that  the  writ  cannot  go,  nor  the  mandate  of  the  court 
be  enforced.  It  is  conceded  that  the  chairman  alone  cannot  levy 
the  taxes ;  but  it  is  claimed  that  the  other  two  persons  elected,  but 
who  neglected  to  qualify,  became  supervisors  de  facto  by  virtue 
of  such  election,  and  can  be  compelled  to  act  as  such  in  the  per- 
formance of  the  duty  enjoined  by  the  writ.  To  this  point  the  case 
of  Coles  County  v.  Allison,  23  111.  437,  is  cited.  That  case  holds  no 
more  than  this:  that  the  acts  of  officers  de  facto  are  valid  as  re- 
spects the  public  and  third  persons  having  an  interest  in  them,  and 
that  they  cannot  be  collaterally  impeached.  The  trustees  there 
elected  at  the  second  election,  though  irregularly  perhaps,  were 
held  to  be  officers  de  facto,  inasmuch  as  they  had,  in  the  language 
of  the  report,  ''qualified,  and  ever  since  exercised  the  functions  of 
their  office."  That  was  sufficient,  in  the  opinion  of  the  court,  to 
show  a  valid  organization  of  the  town.  In  this  case,  however,  the 
other  two  supervisors  elected  not  only  failed  to  qualify,  but  it  does 
not  appear  that  they  have  ever  assumed  to  act  as  such  in  any 
manner  whatever.  The  statute  declares  that  every  office  shall  be- 
come vacant  on  the  refusal  or  neglect  of  the  incumbent  to  take  his 
oath  of  office,  or  to  give  or  renew  his  official  bond,  or  to  deposit 
such  oath  or  bond  within  the  time  prescribed  by  law.  R.  S.  ch.  14, 
sec.  2.  The  other  two  persons  elected  are,  therefore,  neither  super- 
visors de  jure  nor  de  facto;  and  the  offices  are  vacant 

By  the  Court. — Peremptory  writ  refused. 

As  to  effect  in  vacating  an  office  of  the  failure  of  the  one  en- 
titled to  such  an  office  to  file  his  bond  within  the  time  designated  by- 
statute  see  Chicago  v.  Gage,  95  111.  593;  Stephens  v.  Crawford,  1  Ga. 
574;  People  v.  Johr,  22  Mich.  461,  infra. 


SPEED  V.  COMMON  COUNCIL  OF  DETROIT. 

Supreme  Court  of  Michigan.    October,  1893. 

97  Michigan  198. 

Montgomery,  J.  On  September  30  last,  the  relator  filed  his 
petition  in  this  court  for  mandamus  to  compel  the  respondent  to 
approve  a  bond  which  relator  had  filed  with  respondent,  as  city 
counselor.  An  order  to  show  cause  was  issued,  and  respondent's 
answer  is  now  filed. 


136  •        FORMATION    OP    THE    OFFICIAL   RELATION. 

I 

.  It  appears  from  the  petition  that  the  relator  is  a  resident  and 
elector  of  the  city  of  Detroit,  and  that  on  the  16th  of  January, 
1891,  he  was  appointed  city  counselor  by  the  common  council  of 
said  city,  on  the  nomination  of  the  mayor;  that  he  took  the  oath 
of  office  and  filed  his  official  bond,  which  was  approved  by  the 
common  council,  and  thereupon  entered  upon  the  duties  of  said 
office;  that  at  the  session  of  1893  the  Legislature  of  this  State 
passed  an  act  entitled  "An  act  supplemental  to  the  charter  of  the 
city  of  Detroit,  and  to  provide  for  a  law  department  in  said  city," 
the  second  section  of  which  provides: 

"The  city  counselor  shall  be  a  practicing  attorney,  appointed  as 
provided  in  this  act.  He  shall  have  practiced  his  profession  for  at 
least  five  years,  and  shall  devote  his  whole  time  to  the  duties  of  his 
office.  He  shall  be  appointed  by  the  mayor  on  or  before  the  third 
Tuesday  in  June,  for  the  term  of  three  years  from  the  1st  day  of 
July  next  succeeding  his  appointment." 

That  this  act  was  approved  by  the  Governor  on  June  1  and 
took  immediate  effect;  that  at  this  time  the  relator  was  in  the 
office  of  city  counselor  for  llie  term  ending  July  1,  1893 ;  that  on 
July  15,  1893,  the  mayor  of  the  city  executed  and  delivered  to  the 
relator  an  appointment  to  the  office  of  city  counselor. 

That  the  relator  filed  this  appointment  in  the  office  of  the  city 
clerk  on  the  same  day  it  was  made,  together  with  his  oath  of  office ; 
that  the  act  under  which  the  appointment  was  made  provides  in 
section  three  that  the  city  counselor  shall,  before  entering  upon 
the  duties  of  his  office,  execute  a  bond  to  the  city  of  Detroit  in  the 
sum  of  $5,000,  with  such  sureties  as  the  common  council  shall  ap- 
prove, conditioned  for  the  faithful  performance  of  the  duties  of 
his  office ;  that,  on  July  18,  the  relator  executed  the  bond  required 
by  the  act,  with  two  sureties,  in  the  penal  sum  of  $5,000 ;  that  upon 
the  bond  were  endorsed  the  affidavits  of  the  sureties,  in  which  they 
severally  deposed  that  they  were  worth  in  unincumbered  property, 
not  exempt  from  execution  under  the  laws  of  the  State,  each  the 
sum  of  $5,000  after  the  payment  of  his  just  debts,  claims,  and 
liabilities ;  that  the  bond  was  endorsed  by  the  certificate  of  the  city 
attorney ;  that  it  was  correct  in  form  and  execution ;  that  this 
bond  was  filed  on  the  day  of  its  execution  in  the  office  of  the  city 
clerk,  and  by  him  transmitted  to  the  common  council,  which  re- 
ferred the  same  to  the  committee  on  ways  and  means,  and  that  this 
committee,  on  July  25,  1893,  reported  to  the  common  council  in 
favor  of  the  approval  of  the  bond,  which  report  was  laid  upon  the 


SPEED  V.   COMMON  COUNCIL  OF  DETROIT.  137 

table;  that  on  July  18,  1893,  the  mayor  communicated  to  the 
council  that  in  pursuance  of  the  act  of  June  1,  1893,  he  had  ap- 
pointed the  relator  as  city  counselor  for  the  term  commencing  July 
1,  1893 ;  that,  at  a  meeting  of  the  council  held  July  25,  it  received 
from  the  mayor  the  following  communication: 

To  the  Honorable,  The  Common  Council : 

*' Gentlemen:  In  compliance  with  the  act  supplemental  to  the 
charter  of  the  city  of  Detroit,  providing  for  a  law  department, 
passed  by  the  Legislature  in  1893,  and  approved  June  1,  1893,  I 
notified  your  honorable  body  last  Tuesday  of  the  appointment  of 
John  J,  Speed  as  city  counselor  of  the  city  of  Detroit  under  said 
act.  Since  said  appointment  said  Speed  has,  by  public  utterance, 
placed  the  matters  of  the  greatest  importance  to  the  city,  now  in 
litigation,  in  jeopardy,  by,  it  seems  to  me,  most  unwise  and  un- 
called-for interviews  in  the  public  press.  His  attitude,  as  thus 
fairly  conveyed,  seems  hostile  to  the  best  interests  of  the  com- 
munity. While  admitting  the  ultimate  success  of  the  present  liti- 
gation, he  questions  the  policy  of  the  city,  the  motives  of  the 
officials,  and  advocates  the  interests  of  the  defendants.  In  order 
to  protect  the  people  and  maintain  their  rights  thus  far  obtained 
in  the  courts,  I  have  this  Hay  revoked  the  appointment  of  John  J. 
Speed  as  city  counselor,  and  hereby  give  you  notice  thereof,  and 
request  your  honorable  body  not  to  accept  any  bonds  from  said 
Speed,  as  required  by  the  act  aforesaid,  for  such  office,  as  the  same 
is  now  vacant.  Very  respectfully, 

"H.  S.  PiNGREE,  Mayor." 

That  the  report  of  the  committee  for  the  approval  of  the  re- 
lator's bond  was  thereupon  laid  upon  the  table;  and  that  on  July 
29,  at  a  special  session  of  the  council,  the  mayor,  by  a  communica- 
tion then  made,  informed  the  council  that  he  had  appointed  John 
B.  Corliss  city  counselor,  and  requested  confirmation  thereof,  and 
on  motion  this  appointment  was  confirmed  by  the  council. 

The  contention  on  the  part  of  the  respondent  is : 

1.  That,  under  section  8  of  chapter  7  of  the  charter  of  the  city 
of  Detroit,  all  appointments  of  the  mayor  are  conditional,  and  not 
absolute,  and  that  this  section  of  the  charter  was  not  repealed  by 
the  act  of  1893. 

2.  That,  even  if  this  appointment  had  been  absolute,  yet  the 
relator,  on  July  25,  had  not  qualified  so  as  to  entitle  himself  to  the 
office;  therefore  his  appointment  was  inchoate,  and  was  well  re- 
voked by  the  mayor. 

1.     The  present  charter  of  the  city  of  Detroit  was  passed  in  1883. 


138  FORMATION   OF   THE   OFFICIAL   RELATION. 

and  repealed  all  acts  or  parts  of  acts  in  conflict  therewith.    Act 
No.  326,  Local  Acts,  of  1883,  p.  579. 

We  are,  however,  led  to  the  conclusion  that,  under  the  act  of 
1893,  the  exclusive  power  of  appointment  to  the  office  of  city  coun- 
selor is  vested  in  the  mayor.  The  appointment  was  duly  made 
and  filed,  and  when  so  made  and  filed  was  beyond  the  power  of 
the  mayor  to  recall.  It  was  not  inchoate,  as  claimed,  but  was  abso- 
lute, and  upon  the  relator's  complying  with  the  provisions  of  the 
act  by  the  filing  of  his  oath  of  office,  and  the  approval  of  his  bond 
by  the  common  council,  he  was  entitled  to  the  possession  of  the 
office. 

It  is  well  settled  that  when  the  appointing  power  has  once  exer- 
cised its  functions  it  has  no  more  control. 

In  Mosher  v.  Stowell,  9  Abb.  N.  C.  456,  it  appears  that,  by  the 
charter  of  the  city  of  Elmira,  the  common  council  was  vested  with 
the  power  of  appointing  a  city  chamberlain,  whose  term  of  office 
was  fixed  at  three  years.  At  a  regular  meeting  of  the  council  held 
March  11,  1879,  a  resolution  was  adopted  and  entered  upon  the 
minutes,  purporting  to  appoint  the  relator  to  said  office  in  place  of 
the  previous  incumbent,  whose  term  of  office  had  expired.  On  the 
same  day  the  relator  took  the  oath  of  office,  and  filed  the  same  in 
the  proper  office.  He  presented  his  bond  to  the  common  council  at 
a  meeting  held  March  14,  and  on  April  8  the  bond  was  approved. 
The  charter  provided  that  the  mayor  should  sign  all  appointments 
made  by  the  council.  There  was  no  express  proof  that  the  appoint- 
ment of  the  relator  was  or  was  not  signed  by  the  mayor.  At  a  meet- 
ing of  the  council  held  on  March  15  the  council  adopted  a  resolu- 
tion purporting  to  rescind  the  appointment  of  relator,  and  to 
appoint  respondent.  On  that  day  respondent  took  the  oath  of 
office  and  filed  it  with  the  city  clerk,  and  on  the  same  day  the 
council  approved  his  bond,  and  respondent  entered  into  the  office, 
and  continued  to  hold  it.  It  was  held  that  the  signature  of  the 
mayor  was  not  necessary  to  complete  the  appointment,  and  the 
mayor  could  not  defeat  the  action  of  the  council  by  withholding 
his  signature. 

The  subsequent  resolutions,  purporting  to  rescind  the  appoint- 
ment of  relator  and  appointing  respondent,  were  held  to  be  nul- 
lities. 

In  United  States  v.  Bradley,  10  Pet.  343,  it  was  held  that  the 


SPEED  V.   COMMON  COUNCIL  OF  DETROIT.  139 

appointment  of  a  paymaster  is  complete  when  made  by  the  Presi- 
dent and  confirmed  by  the  Senate ;  that  the  giving  of  a  bond  for 
the  faithful  performance  of  his  duties  is  a  mere  ministerial  act  for 
the  security  of  the  government,  and  not  a  condition  precedent  to 
his  authority  to  act  as  paymaster.  The  approval  of  the  bond  is  not 
essential  to  the  vesting  of  the  title  of  the  office  in  relator.  United 
States  V.  Bradley,  supra;  Coogan  v.  Barbour,  53  Conn.  76 ;  United 
States  V.  Le  Baron,  19  How.  73;  Culver  v.  Armstrong,  77  Mich. 
IM;  Bennett  v.Benfield,  SOU.  265. 

2.  There  was,  therefore,  no  vacancy  in  the  office  of  city  coun- 
selor at  the  time  the  mayor  attempted  to  appoint  Mr.  Corliss.  The 
appointment  of  relator  was  complete  and  absolute,  and  a  vacancy 
had  not  occurred,  within  the  provisions  of  section  649,  How.  Stat. 
The  relator  had  not  refused  nor  neglected  to  take  his  oath  of  office, 
or  to  give  his  official  bond,  or  to  deposit  the  same  in  the  manner 
and  within  the  time  prescribed  by  law.  The  council  could  not  ar- 
bitrarily refuse  to  approve  the  bond,  and  the  excuse  here  set  up  by 
the  return  does  not  amount  to  a  justification  for  the  refusal  or 
neglect  to  approve.  It  is  apparent  upon  the  face  of  the  return 
that  the  action  taken  was  not  founded  upon  the  form  or  conditions 
of  the  bond,  or  the  insufficiency  of  the  sureties,  but  upon  the  action 
of  the  mayor  in  his  attempt  to  set  aside  the  appointment  of  re- 
lator, and  to  appoint  Mr.  Corliss. 

4.  The  contention  of  counsel  for  respondent  that  Mr.  Corliss 
is  now  a  de  facto  officer,  and  everyone  is  bound  to  recognize  him 
as  city  counselor,  might  have  some  force  if  the  official  acts  of  Mr. 
Corliss  were  being  questioned;  but  the  only  contention  in  the 
present  proceeding  is  that  it  was  the  duty  of  the  common  council 
to  approve  the  relator's  bond  when  it  was  presented,  and  that  it 
should  now  be  compelled  to  do  so.  It  does  not  matter  here  whether 
Mr.  Corliss  be  regarded  as  a  de  facto  officer  or  a  mere  intruder; 
the  fact  remains  that  the  relator  was  duly  appointed,  and  his  ap- 
pointment could  not  be  revoked  by  the  mayor,  and  the  council 
had  no  power  of  removal  in  the  summary  way  attempted.  It  is  the 
duty,  therefore,  of  the  council  to  approve  relator's  bond,  even 
though  Mr.  Corliss  be  de  facto  city  counselor.  The  vacancy,  if  one 
existed,  was  made  by  reason  of  the  expiration  of  the  term  of  re- 
lator under  his  former  appointment,  and  was  filled  by  his  appoint- 
ment by  the  mayor.  It  is  true  that  it  is  conceded  by  the  relator,  in 
commencing  quo  warranto  proceedings,  that  Mr.  Corliss  is  in  the 
office,  but  he  claims  that  he  is  there  wrongfully,  and  that  the  coun- 


140  FORMATION    OP    THE    OFFICIAL    RELATION. 

cil  should  approve  his  (relator's)  bond.     It  was  the  duty  of  the 
council,  under  the  circumstances,  to  approve  the  bond. 

5.  Mr.  Corliss's  right  to  the  office,  if  he  have  any,  will  be  con- 
sidered in  the  quo  warranto  proceedings,  when  heard;  but  the 
council  cannot  shield  itself  behind  the  claim  made  to  the  office  by 
Mr.  Corliss,  and  refuse  to  perform  a  plain  duty  imposed  upon  it 
by  the  charter. 

6.  We  think  there  is  sufficient  evidence,  and  uncontradicted, 
upon  this  record,  to  warrant  us  in  holding  that  the  bond  was  proper 
in  form,  and  that  the  sureties  thereon  justified  their  responsibility 
as  required  by  the  charter. 

7.  The  claim  made  that  mandamus  is  not  the  proper  remedy 
has  no  force.  It  is  asked  to  compel  the  performance  of  a  purely 
ministerial  act,  and,  no  sufficient  reason  being  given  to  the  con- 
trary, the  writ  must  issue  as  prayed.  The  discussion  of  the  power 
of  the  mayor  and  of  the  council,  and  the  construction  of  the  sev- 
eral provisions  of  the  charter,  become  necessary  to  a  determination 
of  the  relator's  right  to  have  his  bond  approved. 

The  other  justices  concurred. 

But  see  Ex  parte  Harris,  52  Ala.  87,  holding  that  the  approval  of  an 
official  bond  may  not  be  enforced  by  mandamus. 


CHAPTER  III. 

DE  FACTO  OFFICERS 

I.    Intruders. 

STATE  EX  REL.  VAN  AMRINGE  V.  TAYLOR. 

Supreme  Court  of  North  Carolina.    February,  1891. 
108  N.  C.  196. 

Merrimon,  C.  J.  The  ascertainment  of  the  popular  will  or  de- 
sire of  the  electors  under  the  mere  semblance  of  an  election  unau- 
thorized by  law  is  wholly  without  legal  force  or  effect,  because  such 
election  has  no  legal  sanction.  In  settled,  well-regulated  govern- 
ment, the  voice  of  electors  must  be  expressed  and  ascertained  in  an. 
orderly  way  prescribed  by  law.  It  is  this  that  gives  order,  cer- 
tainty, integrity  of  character,  dignity,  direction  and  authority  of 
government  to  the  expression  of  the  popular  will.  An  election 
without  the  sanction  of  the  law  expresses  simply  the  voice  of  dis- 
order, confusion  and  revolution,  however  honestly  expressed. 
Government  cannot  take  notice  of  such  voice  until  it  shall  in  some 
lawful  way  take  on  the  quality  and  character  of  lawful  authority. 
This  is  essential  to  the  integrity  and  authority  of  government. 
Hence,  if  a  person  assume  to  be  a  registrar  of  elections  and  four 
others  likewise  assume  to  be  judges  of  election,  and  purport  and 
undertake  to  hold  an  election  on  election  day,  in  an  election  pre- 
cinct, and  take  and  count  the  votes  cast  at  it  honestly,  such  action 
and  proceeding  would  be  no  election,  nor  would  it  be  accepted  and 
treated  as  such  by  authority.  An  essential  element  of  a  valid 
election  is  that  it  shall  be  held  by  lawful  authority,  substantially 
as  prescribed  by  law.  It  is  not  sufficient  that  it  be  simply  conducted 
honestly,  it  must  as  well  have  legal  sanction.  The  statutory  pro- 
visions and  regulations  in  respect  to  public  elections  in  this  State 
must  be  observed  and  prevail,  certainly  in  their  substance.  Other- 
wise, the  election  will  be  void  and  so  treated.  Therefore,  the  con- 
tention that  if  the  election  in  question  was  simply  conducted  fairly 
and  honestly  it  was  valid,  is  unfounded. 

The  court  instructed  the  jury  that  Thomas  was  registrar  de 
facto  if  they  believed  either  of  the  two  aspects  of  the  evidence,  and 

141 


142  DE  FACTO  OFFICERS. 

the  election  would  hence  be  valid.  As  to  this  there  was  no  excep- 
tion. But  the  court  said  further :  "If  you  find  from  the  evidence 
that  Cowan  continued  to  act  as  registrar  and  employed  Thomas  as 
clerk  to  assist  him,  and  that  Thomas,  whilst  sustaining  this  relation 
to  Cowan,  fraudulently  obtained  possession  of  the  books  on  the 
second  Saturday  preceding  the  election  with  a  promise  to  return 
them,  and  assumed  to  act  as  registrar,  he  was  an  intruder  and 
had  no  authority  and  could  perform  no  lawful  official  act,  and  in 
consequence  the  election  held  by  him  and  his  appointees  was  void, 
and  your  answer  to  the  issue  should  be  No."  This  is  made  the 
principal  ground  of  assignment  of  error. 

The  instruction  thus  complained  of  must  be  taken  in  connection 
with  the  whole  of  the  instructions  given,  and  in  view  of  all  the 
evidence  pertinent.  The  evidence  tended  to  prove  that  one  Cowan 
was  duly  appointed  to  be  registrar;  that  he  accepted  the  office,  and 
acted  as  and  claimed  to  be  such,  continuously,  until  the  day  of  the 
election;  that  he  did  not  resign,  or  profess  to  resign;  that  he  did 
not  appoint,  or  undertake  to  appoint  Thomas  to  be  registrar;  that 
he  was  employed  and  treated  simply  as  his  clerk;  that  Thomas 
fraudulently  got  the  registration  books  from  the  registrar  under 
the  false  promise  to  return  the  same ;  that  he  did  not  do  so,  but  on 
the  day  of  election  expressly  refused  to  surrender  the  registration 
books,  and  then  assumed  to  be  registrar,  acted  as  such,  and  under- 
took and  purported  to  appoint  three  judges  of  election,  who,  with 
a  judge  regularly  appointed,  co-operated  with  him  in  holding  the 
election.  The  evidence  fully  warranted  the  instruction,  if  it  was 
correct  in  point  of  law. 

It  is  difficult  to  define,  in  precise  terms,  what  constitutes  an 
officer  de  facto  in  all  cases.  Indeed,  what  may  constitute  such 
officer  in  one  case,  may  not  in  another.  A  variety  of  facts  and 
circumstances,  tending  to  show  authority  of  the  person  claiming 
and  exercising  it,  go  to  constitute  such  officer,  and  upon  grounds 
of  necessity  and  public  policy,  to  give  his  acts  validity  as  to  the 
public  and  persons  taking  benefit  of  his  official  acts.  There  must 
be  something,  some  consideration,  evidence,  facts,  circumstances  or 
conditions  that  reasonably  lead  those  persons  who,  in  the  course 
of  the  administration  and  discharge  of  the  duties  of  the  office,  must, 
in  some  way,  have  relations  or  business  with  it,  to  recognize  and 
treat  the  person  claiming  to  be  officer  as  the  lawful  incumbent. 

.  .  .  .  A  mere  intruder  or  usurper  is  not  ordinarily,  but  may 
become,  an  officer  de  facto  in  some  cases.    This  can  happen  only 


STATE   V.    TAYLOR.  143 

by  the  continued  exercise  of  the  office  by  him  and  the  acquiescence 
therein  by  the  public  authorities  and  the  public  for  such  length 
of  time  as  to  afford  to  citizens  generally  a  strong  presumption  that 
he  had  been  duly  appointed.  But  when  without  color  of  author- 
ity he  simply  assumes  to  act,  to  exercise  authority  as  an  officer,  and 
the  public  know  the  fact,  or  reasonably  ought  to  know  that  he  is 
an  usurper,  his  acts  are  absolutely  void  for  all  purposes.  The 
mere  fact  that,  apart  from  his  usurpation,  his  supposed  official 
acts  were  fair  and  honest  could  not  impart  to  them  validity  and 
efficiency 

The  citizen  is  justly  chargeable  with  laches,  does  that  which  is 
his  own  wrong  and  wrong  to  the  public,  when  he  recognizes,  tol- 
erates, encourages  and  sustains  a  mere  usurper,  one  whom  he 
knows,  or  ought,  under  the  circumstances,  to  know  to  be  such.  In 
such  cases,  neither  justice,  necessity  nor  public  policy  requires  that 
the  acts  of  the  usurper  shall  be  upheld  as  valid  for  any  purpose. 
Indeed,  these  things,  the  spirit  and  purpose  of  government  strongly 
suggest  the  contrary. 

When,  therefore,  Thomas  obtained  from  the  registrar  (Cowan) 
the  registration  books,  fraudulently,  under  promise  to  return  the 
same  and  assumed  to  act  as  registrar,  he  was  simply  an  intruder, 
and  had  no  authority  and  could  perform  no  lawful  act  as  such,  and 
the  election  which  he  and  the  supposed  judges,  his  appointees,  co- 
operating with  him,  held,  was  void.  The  instruction  of  the  court 
to  the  jury  excepted  to  was  pertinent,  and  had  reference  to  the 
evidence  going  to  prove  that  Thomas  so  fraudulently  obtained  the 
registration  books  and  assumed  to  act  as  registrar,  and  the  jury 
must  have  found  that  he  did.  The  jury  found  that  he  was  not 
registrar  de  facto  by  reason  of  color  of  appointment.  They  found 
also  that  he  was  a  fraudulent  intruder,  but  they  did  not  find — 
nor  was  there  evidence  to  warrant  such  finding — ^that  he  was  an 
intruder  under  such  circumstances  and  conditions  as  to  constitute 
him  registrar  de  facto.  The  evidence  went  to  show  that  he  had 
been  the  clerk  of  the  registrar;  that  he  did  not  claim  to  be  or  act 
as  registrar  until  the  day  of  the  election ;  that  he  had  no  such  repu- 
tation ;  that  the  electors  had  not  so  recognized  him ;  that  no  public 
authority  had  so  recognized  him  at  any  time;  and  that,  on  the 
morning  of  the  day  of  the  election,  in  the  presence  of  electors, 
the  lawful  registrar  had  publicly  demanded  that  he  sur- 
render to  him  the  registration  books  to  the  end  that  he  and  the 
lawfully  appointed  judges  of  election  might  hold  the  election  ac- 


144  DE  FACTO  OFFICERS. 

cording  to  law,  and  he  refused  to  do  so.  The  evidence  went  to 
prove,  and  the  jury  found,  that  Thomas  was  a  naked  intruder, 
with  no  attending  circumstances  and  conditions  that  rendered  him 
registrar  de  facto.  The  electors  had  notice  that  Cowan  was  the 
lawful  registrar;  that  he  had  been  duly  appointed;  that  he  acted 
as  such.  There  was  no  notice  that  he  had  resigned  his  office,  nor 
had  he  done  so.  On  the  contrary,  on  the  morning  of  the  election 
he  claimed  his  right  and  authority  to  hold  the  election.  This  was 
notice — important  notice — that  Thomas  was  an  intruder,  and  the 
election  was  not  such  in  contemplation  of  law.  The  electors  ought 
not  to  have  recognized  the  intruder.  They  did  so  in  their  own 
wrong.  They  ought  to  have  demanded  and  required  that  the 
registrar  and  lawful  judges  of  election  hold  the  election  according 
to  law.  It  was  their  duty  to  themselves  and  to  the  public  to  have 
done  so,  and,  failing  in  this  for  any  cause,  they  ought  not  to  have 
gone  through  an  empty  form  that  had  no  legal  effect.  They  lost 
their  votes  and  their  voice,  in  part,  through  their  own  laches. 

The  issue  of  fact  submitted  to  the  jury  was  broad  and  compre- 
hensive. It  embraced  the  whole  of  the  matter  at  issue.  The  re- 
lator could  readily,  as  he  did,  put  in  all  pertinent  evidence  and 
avail  himself  of  it  before  the  jury.  He  was  not  necessarily  preju- 
diced by  it,  nor  can  we  see,  nor  does  it  at  all  appear,  that  he  was. 
The  other  exceptions  are  without  merit. 

Judgment  affirmed. 


II.    Who  are  de  facto  Officers. 

STATE  V.  CARROLL. 

Supreme  Court  of  Errors  of  Connecticut.    1871. 
38  Conn.  449. 

The  prisoner  moved  to  erase  the  case  from  the  docket  for  the  fol- 
lowing reasons: 

First,  because  the  court  before  which  he  was  tried  was  an  irreg- 
ular and  pretended  court,  not  holden  by  H.  Lynde  Harrison,  Esq., 
the  only  judge  of  said  court,  but  by  one  William  H.  Morse,  who  was 
never  elected  judge  of  the  same  by  the  General  Assembly. 

Butler,  C.  J. 


STATE  V.   CAEROLL.  145 

If  the  principle  that  an  officer  who  exercises  the  duties  of  an 
office  under  and  pursuant  to  the  provisions  of  an  unconstitutional 
law  is  as  to  the  public  and  third  persons  an  officer  de  facto,  be 
sound,  Mr.  Morse  was  such  officer,  and  the  judgment  is  valid.  The 
principle  was  questioned  in  the  argument  of  that  case,  and  in  the 
dissenting  opinion,  mainly  on  two  grounds,  viz. :  First,  on  the 
ground  that  there  must  be  in  order  to  constitute  an  officer  de  facto, 
color  of  election  or  appointment  hy  the  only  body  which  had  power 
to  elect  or  appoint;  and  second,  on  the  ground  that  a  law  mani- 
festly unconstitutional  has  not  even  the  semblance  of  authority, 
and  cannot  confer  any  color  whatever. 

First,  then,  as  to  the  point  that  in  order  to  constitute  an  officer 
de  facto  there  must  be  color  of  appointment  or  election  by  the  onlj^ 
body  which  had  the  power  to  appoint  or  elect.  No  authority  was 
cited  for  it  except  an  expression  used  by  Judge  Hinman  in  Doug- 
lass V.  WicJcwire,  19  Conn.  492,  and  quoted  in  State  v.  Brennan's 
Liquors,  25  Conn.  283.  The  claim  was  that  the  expression  was  used 
as  a  definition  of  that  which  constitutes  an  officer  de  facto.  The 
expression  was  this:  ''It  is  enough  if  the  officer  acts  under  color 
of  an  election  or  appointment,  by  the  only  body  which  has  the 
power  to  make  it. " 

2.  But  if  it  were  admitted  that  such  a  definition  was  intended, 
it  would  be  entitled  to  no  respect.  None  such  is  to  be  found  any- 
where, with  or  without  the  qualification  'prima  facie,'  in  any  of 
the  more  than  two  hundred  cases  which  have  been  decided  in  Eng- 
land and  this  country,  in  respect  to  this  matter.  Such  a  defini- 
tion is  directly  in  conflict  with  the  principles  which  underlie  the 
de  facto  doctrine,  and  to  a  strong  and  irresistible  current  of  de- 
cision in  England  and  in  this  country,  commencing  with  the  ear- 
liest case  in  the  Year  Books,  and  extending  to  the  present  time. 

The  de  facto  doctrine  was  introduced  into  the  law  as  a  matter 
of  policy  and  necessity,  to  protect  the  interests  of  the  public  and 
individuals,  where  those  interests  were  involved  in  the  official  acts 
of  persons  exercising  the  duties  of  an  office  without  being  lawful 
officers.  It  was  seen,  as  was  said,  that  the  public  could  not  reason- 
ably be  compelled  to  inquire  into  the  title  of  an  officer,  nor  be  com- 
pelled to  show  a  title,  and  these  became  settled  principles  in  the  law. 
But  to  protect  those  who  dealt  with  such  officers  when  apparent  in- 
cumbents of  offices  under  such  apparent  circumstances  of  reputation 
10 


146  DE  FACTO  OFFICERS. 

or  color  as  would  lead  men  to  suppose  they  were  legal  oflScers,  the 
law  validated  their  acts  as  to  the  public  and  third  persons,  on  the 
ground  that,  as  to  them,  although  not  officers  de  jure,  they  were 
officers  in  fact,  whose  acts  public  policy  required  should  be  consid- 
ered valid.  It  was  not  because  of  any  quality  or  character  con- 
ferred upon  the  officer,  or  attached  to  him  by  reason  of  any  de- 
fective election  or  appointment,  but  a  name  or  character  given  to 
his  acts  by  the  law,  for  the  purpose  of  validating  them.  When, 
therefore,  in  civil  cases,  the  public  or  third  persons  had  knowledge 
that  the  officer  was  not  an  officer  de  jure,  the  reason  for  validating 
the  acts  to  which  they  submitted,  or  which  they  invoked,  failed,  and 
the  law  no  longer  protected  them. 

It  should  be  remembered  that  among  the  earliest  cases  there  was 
a  distinct  class  entirely  independent  of  color  derived  from  any 
known  appointment  or  election,  where  the  law  said  to  the  public 
as  a  rule  of  policy:  "If  you  find  a  man  executing  the  duties  of 
an  office,  under  such  circumstances  of  continuance,  reputation,  or 
otherwise,  as  reasonably  authorize  the  presumption  that  he  is  the 
officer  he  assumes  to  be,  you  may  submit  to  or  employ  him  without 
taking  the  trouble  to  inquire  into  his  title,  and  the  law  will  hold 
his  acts  valid  as  to  you,  holding  him  to  be,  so  far  forth,  an  officer 
de  facto.  If  he  has  color  of  appointment  or  election,  and  yet  is 
not  a  good  officer  for  want  of  authority  in  the  appointing  power, 
or  irregularity  in  exercising  it,  or  because  there  was  another  law- 
ful officer  entitled  to  the  office,  or  because  the  incumbent  was  inel- 
igible, or  had  not  qualified  as  the  law  required,  or  his  term  had 
expired,  your  case  is  made  stronger  by  the  color,  but  that  kind  of 
color  is  not  essential  to  your  protection,  for  you  are  not  bound  to 
inquire  to  see  that  it  exists."  So  the  law  has  spoken  in  England 
from  the  first  introduction  of  the  doctrine,  as  the  cases  abundantly 
show.  So  it  speaks  there  now.  So  it  spoke  in  this  country  until 
that  deceptive  definition  was  introduced  from  Strange,  and  so  it 
has  since  spoken,  and  the  definition  been  modified  accordingly, 
whenever  a  case  has  arisen  where  the  policy  on  which  the  law  was 
founded  had  made  it  necessary  that  it  should  so  speak,  to  save  the 
public  from  mischief,  or  individuals  from  loss. 

These  cases  seem  to  me  sufficient  to  show  that  even  our  definition 
of  a  de  facto  officer,  as  introduced  by  Judge  Ilosmer  from  Strange, 
is  imperfect,  and  tends  to  obscure  the  true  character  of  the  doc- 
trine.    They  are  all  cases  of  usurpation,  without  election  or  ap- 


STATE  V.   CARROLL.  147 

pointment  for  the  terms  during  which  the  acts  were  done,  or  color 
from  that  source,  and  sustainable  only  on  the  ground  of  reputa- 
tion and  presumption. 

Doubtless  color  of  election  or  appointment  from  competent  au- 
thority is  necessary  for  the  protection  of  an  officer  de  facto,  when 
he  is  assailed  directly  because  of  his  acts.  And  there  are  other  dis- 
tinctions which  bear  upon  the  relation  of  an  officer,  as  that  he  can- 
not collect  his  fees,  or  claim  any  rights  incident  to  his  office,  with- 
out showing  himself  to  be  an  officer  de  jure,  but  which  do  not 
bear  upon  the  case  in  hand.  I  will  not  pursue  that  branch  of  the 
subject  any  farther  than  to  say,  that  we  shall  see  hereafter  that 
an  officer  will  be  protected  in  relation  to  all  acts  done  under  or 
pursuant  to  public  law,  before  it  is  judicially  determined  to  be 
unconstitutional. 

A  definition  sufficiently  accurate  and  comprehensive  to  cover 
the  whole  ground  must,  I  think,  be  substantially  as  follows:  An 
officer  de  facto  is  one  whose  acts  though  not  those  of  a  lawful 
officer,  the  law,  upon  principles  of  policy  and  justice,  will  hold 
valid  so  far  as  they  involve  the  interests  of  the  public  and  third 
persons,  where  the  duties  of  the  office  were  exercised, 

First,  without  a  known  appointment  or  election,  but  under  such 
circumstances  of  reputation  or  acquiescence  as  were  calculated  to 
induce  people,  without  inquiry,  to  submit  to  or  invoke  his  action, 
supposing  him  to  be  the  officer  he  assumed  to  be. 

Second,  under  color  of  a  known  and  valid  appointment  or  elec- 
tion, but  where  the  officer  had  failed  to  conform  to  some  precedent 
requirement  or  condition,  as  to  take  an  oath,  give  a  bond,  or  the 
like. 

Third,  under  color  of  a  known  election  or  appointment,  void 
because  the  officer  was  not  eligible,  or  because  there  was  a  want  of 
power  in  the  appointing  or  electing  body,  or  by  reason  of  some 
defect  or  irregularity  in  its  exercise,  such  ineligibility,  want  of 
power,  or  defect  being  unknown  to  the  public. 

Fourth,  under  color  of  an  election  or  appointment  by  or  pur- 
suant to  a  public  unconstitutional  law,  before  the  same  is  ad- 
judged to  be  such. 

Anything  less  comprehensive  and  discriminating  will,  I  think,  be 
imperfect  and  deceptive  as  a  definition. 

We  come  now  to  the  second  and  more  important  proposition  ad- 
vanced in  'Brown  v.  O'Connell,  to  the  effect  that  *'a  law  passed  by 
the  legislature  cannot  have  color  of  authority,  or  the  semblance 
of  authority,  unless  it  appear  prima  facie  to  be  law  and  that  it 


148  DE  FACTO  OFFICEES. 

cannot  so  appear  if  it  is  manifestly  repugnant  to  the  constitution: 
but  that  a  law  of  doubtful  constitutionality  may  be  presumed  to  be 
constitutional  until  it  is  judicially  decided  to  be  otherwise;  but 
that  a  law  manifestly  unconstitutional  is  void  upon  its  face,  and 
unable  to  confer  the  appearance  of  color  of  authority."    .... 

The  doctrine  that  a  law  of  doubtful  constitutionality  may  be 
presumed  to  be  constitutional  until  judicially  decided  otherwise, 
and  that  a  law  manifestly  unconstitutional  cannot  be  so  presumed, 
has  no  existence  as  applicable  to  the  citizen.  There  is  a  rule  of  ju- 
dicial construction  adopted  by  the  courts  to  the  effect  that  unless 
the  law  is  clearly  unconstitutional,  or  if  it  is  of  doubtful  constitu- 
tionality, they  will  not  declare  it  unconstitutional.  But  that  is  a 
rule  of  purely  judicial  construction,  and  can  have  no  other  appli- 
cation  It  has  never  been  claimed,  to  my  knowledge, 

before,  that  the  citizen  may  adopt  that  rule  of  judicial  construc- 
tion, and  treat  a  law,  if  manifestly  unconstitutional,  as  without 
the  semblance  or  color  of  authority.  It  is  an  instance  of  the  mis- 
application of  an  unquestioned  rule. 

If,  then,  the  law  of  the  legislature,  which  creates  an  office  and 
provides  an  officer  to  perform  its  duties,  must  have  the  force  of 
law  until  set  aside  as  unconstitutional  by  the  courts,  it  would  be 
absurd  to  say  that  an  officer  so  provided  had  no  color  of  authority. 
But  on  this  question  we  need  not  reason.  There  is  an  irresistible 
current  of  authority  in  this  country  which  determines  it. 

The  question  whether  the  act  under  which  the  justice  held  the 
city  court  was  constitutional  or  not,  we  do  not  think  proper  under 
the  circumstances  to  decide.  As  he  was  clearly  a  judge  de  facto,  a 
decision  of  the  question  is  not  necessary,  and  it  has  not  been,  and 
should  not  be,  the  practice  of  this  court  to  decide  upon  the  con- 
stitutionality of  an  act  of  the  General  Assembly  unnecessarily,  nor 
without  full  and  exhaustive  argument.  Such  argument  we  have 
not  heard  in  this  case — ^the  question  being  scarcely  alluded  to  on 
behalf  of  the  state.  Moreover,  there  is  a  cotemporaneous  exposi- 
tion and  practice  in  relation  to  the  subject  peculiar  to  this  state, 
and  other  existing  laws,  which  render  the  question  one  of  grave 
importance. 

Looking,  then,  to  the  general  practice  which  existed  in  relation 
to  the  manner  of  filling  the  courts  in  cases  of  vacancy  or  disability, 
from  an  early  period  in  the  history  of  the  state,  and  to  the  cotem- 
poraneous and  continued  adoption  of  the  practice  under  the  con- 


OLIVER    V.    THE    MAYOR.  149 

stitution;  to  the  fact  that  a  decision  of  the  question  may  reach 
all  the  courts  of  the  state,  and  that  it  has  not  been  fully  argued; 
and  the  fact  that  the  decision  of  the  question  is  unnecessary  in  the 
case,  for  that  the  justice  must  be  holden  to  have  been  a  judge  de 
facto,  and  his  judgment  valid  in  any  event,  we  deem  it  our  duty 
to  leave  the  question  undecided. 

In  this  opinion  Carpenter,  Foster,  and  Seymour,  Js.,  concurred. 
Park,  J.,  concurred  in  the  result. 


OLIVER  V.  THE  MAYOR,  ETC. 

Supreme  Court  of  New  Jersey.    November,  1899. 
63  N.  J.  L.  634. 

Nixon,  J.  On  September  19th,  1898,  the  board  of  street  and 
water  commissioners  of  Jersey  City  passed  **An  ordinance  grant- 
ing to  the  Greenville  and  Hudson  Railway  Company  permission 
to  cross  Communipaw  Avenue  with  its  tracks  at  grade  and  regu- 
lating such  crossing."  The  ordinance  was  vetoed  by  the  mayor 
but  was  passed  again,  notwithstanding  the  objections  of  the  mayor, 
on  the  3rd  of  October,  1898. 

The  defendant  in  error,  a  resident  and  taxpayer  of  Jersey  City, 
was  allowed  a  writ  of  certiorari,  and  a  judgment  of  the  Supreme 
Court  was  afterwards  obtained  setting  aside  the  ordinance,  and 
this  writ  of  error  brings  that  judgment  before  us  for  review. 

.  .  .  .  the  ordinance  was  assailed  principally  upon  the  ground 
that  it  was  not  legally  adopted.  The  board  of  street  and  water 
commissioners  is  the  governing  body  of  Jersey  City,  and  it  enacts 
all  the  local  laws  of  that  city  respecting  streets  and  water.  It 
consists  of  five  members,  and  the  ordinances  passed  are  subject  to 
the  mayor's  approval,  and  if  vetoed  by  him  may  be  again  passed, 
notwithstanding  his  objections,  by  four  votes  of  the  board.  Gen. 
Stat.  p.  465.  The  ordinance  in  question  was  adopted  at  a  regu- 
lar meeting  held  September  19th,  1898,  there  being  four  votes  for 
and  one  against  it.  It  was  vetoed  by  the  mayor  on  September  28th, 
and  finally  passed  over  his  veto  on  the  3rd  of  October,  1898,  re- 
ceiving the  same  number  of  votes.  But  the  contention  is  that  one 
of  them  was  not  such  as  could  give  efficacy  to  the  ordinance.    It 


150  DB  FACTO  OFPICEES. 

was  cast  by  Robert  G.  Smith,  who  had  been  mustered  into  the 
United  States  service  as  colonel  of  the  Fourth  Regiment  of  New 
Jersey  Volunteers,  on  July  18,  1898.  The  statute  creating  the 
board  of  street  and  water  commissioners  provides  (Gen.  Stat.  p. 
465)  that  "no  commissioner  shall  accept  or  hold  any  other  place 
of  public  trust  or  emolument  within  the  elective  franchise,  nor  any 
appointment  to  public  office,  unless  he  shall  first  resign  his  said 
office,  and  if  he  shall  accept  such  other  office  without  having  re- 
signed his  office  of  such  commissioner,  upon  his  acceptance  of  such 
place  of  appointment  his  office  shall  thereupon  become  vacant." 

While  there  has  not  been  furnished  the  best  proof  that  Smith 
actually  accepted  the  office  of  colonel,  yet  in  the  absence  of  any 
rebuttal  we  shall  hold,  as  did  the  court  below,  that  it  is  sufficient 
and  that  he  did  accept  such  office. 

It  is  also  insisted  by  the  plaintiffs  in  error  that  Smith  should  be 
made  a  party  in  this  proceeding,  but  we  think  that  where  an  action 
is  instituted  the  object  of  which  is  only  to  determine  the  validity 
of  the  act  or  thing  done  by  an  officer,  and  not  involving  his  per- 
sonal integrity  or  want  of  good  faith,  the  officer  himself  is  not  a 
necessary  party.  No  allegation  or  proof  of  bad  faith  on  the  part 
of  anyone  appears  in  the  record. 

The  question  at  issue  is  thus  narrowed  down  to  the  efficacy  of 
Smith's  vote  in  the  adoption  of  the  ordinance.  Without  his  vote 
it  could  not  have  been  passed  over  the  veto ;  neither  could  it  with- 
out every  other  vote  it  received;  and  it  is  not  strictly  accurate  to 
say  that  his  vote  had  any  more  potency  than  any  other.  After 
his  appointment  Smith  continued  to  discharge  the  duties  of  his 
office  as  commissioner  and  was  present  and  voted  when  the  ordi- 
nance was  adopted,  as  the  official  minutes  show.  It  would  there- 
fore be  a  pure  solecism  to  call  the  office  vacant  at  that  time  except 
in  the  strictly  legal  sense  of  having  no  occupant  with  a  de  jure 
title.  The  acts  done  by  Smith  in  respect  to  the  adoption  of  the 
ordinance  were  neither  more  nor  less  than  he  would  have  done  had 
the  Fourth  Regiment  never  been  organized.  It  is  therefore  man- 
ifest that  the  words  of  the  statute  (Gen.  Stat.  p.  465)  already 
quoted,  declaring  that  when  a  commissioner  accepts  another  office 
his  former  office  shall  become  ''vacant,"  cannot  mean,  in  a  situa- 
tion like  this,  that  it  is  corporeally  vacant,  for  the  person  law- 
fully elected  to  fill  it  remained  in  possession  discharging  its  du- 
ties. Mere  words  in  a  statute  cannot  alone  make  an  office  unoccu- 
pied which  in  fact  is  occupied.  The  legal  meaning  of  the  words 
in  such  circumstances  is  that  the  office  has  no  occupant  who  holds 


OLIVER    V.    THE    MAYOR.  151 

by  a  good  title  in  law,  and  that  the  appointing  power  may  at  once 
be  exercised  to  fill  it,  or  if  it  is  an  elective  office,  the  people  may 
elect,  and  no  adjudication  is  required  to  declare  the  vacancy,  al- 
though the  newly-appointed  or  elected  officer  may  find  it  necessary 
afterwards  to  resort  to  quo  warranto  proceedings  to  obtain  actual 
possession  of  the  office.  Under  the  old  rule  of  the  common  law,  that 
upon  accepting  another  and  incompatible  office  the  first  became 
vacant  and  the  occupant  refused  to  abandon  it,  a  writ  of  quo  war- 
ranto to  determine  the  question  of  incompatibility  was  the  rem- 
edy; and  where  the  common  law  has  been  superseded  by  statutes 
declaring  a  vacancy  under  like  circumstances  and  the  occupant 
remains,  a  similar  course  must  be  pursued  to  obtain  possession  or 
such  other  steps  as  the  facts  may  warrant.  There  are  familiar 
precedents  in  our  own  state  which  illustrate  the  rules  here  stated. 
In  Clark  v.  Ennis,  16  Vroom  69-72,  the  court  said:  "It  is  clear, 
both  upon  reason  and  authority,  that  a  statute  declaring  an  office 
vacant  for  some  act  or  omission  of  the  incumbent  after  he  enters 
upon  his  duties,  does  not  execute  itself. ' '  Also,  Clawson  v.  Thomp- 
son, Spenc.  689 ;  also.  State  v.  Parkhurst,  4  Halst.  427,  with  a  dif- 
ference only  in  the  attitude  of  the  parties.  The  governor  having 
appointed  Parkhurst  in  Ogden's  absence,  the  new  officer  took  pos- 
session and  Ogden  became  the  prosecutor  to  regain  possession. 
Had  Ogden  remained  the  title  of  the  case  would  have  been  State 
V.  Ogden,  with  the  same  result.  The  same  practice  prevails  in 
other  states,  and  the  rule  is  clearly  stated  in  State  v.  Jones,  19 
Ind.  356,  where  it  is  said:  ''Where  it  appears,  prima  facie,  that 
acts  or  events  have  occurred  subjecting  an  office  to  a  judicial 
declaration  of  being  vacant,  the  authority  authorized  to  fill  such 
vacancy,  supposing  the  office  to  be  vacant,  may  proceed  before  pro- 
curing a  judicial  declaration  of  the  vacancy  and  appoint  or  elect, 
according  to  the  forms  of  law,  a  person  to  fill  such  office;  but  if, 
when  such  person  attempts  to  take  possession  of  the  office,  he  is 
resisted  by  the  pervious  incumbent,  he  will  be  compelled  to  try 
the  right  and  oust  the  incumbent,  or  fail  to  oust  him,  in  some  mode 
prescribed  by  law." 

Smith,  then,  being  in  the  office  under  color  of  a  legal  title, 
ah  origine,  and  no  other  person  claiming  a  right  to  it,  was  he  a 
commissioner  de  facto?  Lord  EUenborough,  in  1805,  in  Bex  v. 
Bedford  Level,  6  East  356,  said:  "An  officer  de  facto  is  one  who 
has  a  reputation  of  being  an  officer,  who  assumes  to  be  and  yet  is 
not  a  good  officer  in  point  of  law."  This  definition  has  never 
been  questioned,  and  all  those  given  by  the  text-writers  since  are 


152  DE  FACTO  OFFICERS. 

little  more  than  variations  of  this  one.  Tested  by  this  ancient  or 
any  modern  definition,  Smith  must  be  held  to  have  been  such  an 
officer  when  this  ordinance  was  passed.  He  certainly  had  color  of 
title  and  reputation,  for  the  legal  voters  of  Jersey  City  elected 
him  in  the  spring  of  1898  a  member  of  the  board  for  a  term  of 
three  years,  and  he  duly  qualified  as  such  and  entered  upon  his 
duties  with  full  knowledge  and  acquiescence  of  the  public.  He 
had  never  resigned.  The  board  had  not  been  abolished  and  his 
term  had  not  eipired.  It  has  been  urged  and  the  record  shows 
that  he  had  been  absent  from  several  meetings  of  the  board,  but  it 
cannot  be  held  that  a  vacant  chair  in  itself  makes  a  vacant  office. 
Such  a  rule  would  work  bad  results  in  most  of  our  legislative  and 
governing  bodies.  The  question  in  a  case  like  this  is  not  whether 
a  member  has  been  frequently  absent  but  whether  he  was  present 
and  voted  when  the  ordinance  was  adopted.  He  did  not  assert  a 
right  which  any  other  person  claimed,  or  perform  any  official 
duties  that  anyone  else  pretended  to  have  any  right  to  perform  in 
his  stead,  but  only  those  duties  which  belonged  to  the  office  he  was 
elected  to  fill  and  which  the  law  contemplated  should  be  done  and 
the  public  expected  him  to  do  when  they  elected  him,  for  the  law 
creating  the  board  provides  that  the  judgment  and  wisdom  of 
five  commissioners  should  determine  the  questions  that  arise  in  the 
passage  of  ordinances  concerning  the  streets.  The  board  also 
recognized  his  membership.  He  participated  in  their  proceedings, 
his  name  was  called  and  vote  recorded  in  the  adoption  of  ordi- 
nances, and  if  not  present  his  absence  was  duly  noted  in  the 
official  minutes.  With  all  these  facts  and  circumstances  appearing 
in  the  record,  and  undisputed,  we  must  hold  that  Smith  was  a 
commissioner  de  facto.  This  conclusion  is  in  accord,  we  think, 
with  the  decisions  in  this  state  and  elsewhere  on  this  subject. 

There  are  no  facts  in  this  case  to  justify  us  in  relaxing  the 
wise  and  ancient  rule  so  deeply  rooted  in  public  policy,  that  the 
acts  of  de  facto  officers  holding  under  color  of  title  originally  law- 
ful, when  acting  in  good  faith,  will  protect  third  persons  and  the 
public  in  their  dealings  with  them,  whether  serving  alone  or  as 
members  of  a  governing  or  legislative  body. 

The  ordinance  in  question  is  one  of  interest  to  all  of  the  people 
of  Jersey  City,  and  they  are  the  public  whose  rights  are  affected 
by  its  validity.  The  third  persons  whose  rights  are  involved  are 
the  more  than  four  hundred  residents  and  taxpayers  in  the  neigh- 
borhood where  it  is  to  go  into  effect,  who  petitioned  the  board  to 


NOFIRE  V.  UNITED  STATES.  153 

pass  it,  claiming  that  it  will  be  of  benefit  to  them,  and  another 
third  party,  corporate,  is  the  railway  company  to  which  the  right 
is  granted  to  lay  the  tracks  that  will,  it  is  alleged,  greatly  add  to 
the  convenience  of  a  system  of  public  traffic  extending  from  Com- 
munipaw  cove  to  the  great  lakes. 

The  learned  counsel  for  the  prosecutor  have  invited  our  atten- 
tion to  many  cases,  but  we  fail  to  discover  their  applicability  to 
the  facts  in  the  record  before  us.  There  can  be  no  difference  of 
opinion  as  to  all  such  as  hold  that  when  a  person  filling  one  office 
accepts  another  and  incompatible  one,  his  de  jure  title  to  the  first 
ceases,  and  his  successor  may  at  once  be  appointed  or  elected,  or 
that  the  acts  of  an  officer  whose  term  has  ended  and  his  successor 
had  qualified  and  taken  possession  in  his  stead  are  void,  or  that 
the  official  acts  of  a  city  council  done  after  the  term  for  which  it 
was  elected  has  expired  are  illegal ;  also  the  acts  of  a  board  after  it 
has  been  abolished  by  the  legislature,  or  that  the  acts  of  one  who 
has  not,  and  never  had,  any  color  of  title  to  the  office  are  void. 

But  this  case  rests  entirely  upon  the  question  whether  Smith 
when  he  voted  for  the  ordinance  in  dispute  was  an  officer  de  facto, 
and  his  acts,  therefore,  valid  as  far  as  the  rights  of  third  parties 
and  the  public  are  concerned.  We  hold  that  he  was  such  an  of- 
ficer, and  that  the  ordinance  is  valid.  This  conclusion  results  in 
a  reversal  of  the  judgment  of  the  Supreme  Court  setting  aside  the 
ordinance. 

For  affirmance — Gummere,  1. 

For  reversal — The  Chief  Justice,  Dixon,  Garrison,  Ludlow, 
BoGEBT,  Nixon,  Hendrickson,  Adams,  Vbedenbubgh,  9. 

One  who  is  ineligible  for  an  office  but  becomes  an  incumbent  thereof 
is  a  de  facto  officer.  Attorney  General  v.  Marston,  6©  N.  H.  485,  infra. 
So  also  is  one  who  holds  over  after  the  expiration  of  his  term.  Romero 
V.  United  States,  24  Ct.  of  CI.  441. 


NOFIRE  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.    October,  1896. 
164  United  States,  657. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

Plaintiffs  in  error  were  indicted  in  the  Circuit  Court  of  the 
United  States  for  the  "Western  District  of  Arkansas  for  the  mur- 
der of  Fred.  Rutherford  "at  the  Cherokee  Nation  in  the  Indian 
country,"  on  December  15,  1895.    They  were  tried  in  May,  1896, 


154  DE  PACTO  OFFICEKS. 

found  guilty  by  the  jury,  and,  on  June  12,  the  verdict  having  been 
sustained,  they  were  sentenced  to  be  hanged. 

The  principal  question,  and  the  only  one  we  deem  it  necessary 
to  notice,  is  as  to  the  jurisdiction  of  the  court.  The  defendants 
were  full-blooded  Cherokee  Indians.  The  indictment  charged  that 
Rutherford  was  "a  white  man  and  not  an  Indian,"  but  testimony 
was  offered  for  the  purpose  of  showing  that  although  a  white 
man  he  had  been  adopted  into  the  Cherokee  Nation,  which,  if 
proved,  would  oust  the  Federal  court  of  jurisdiction  within  the 
rule  laid  down  in  Alberty  v.  United  States,  162  U.  S.  499.  In  that 
case  it  was  held  that  the  courts  of  the  Nation  have  jurisdiction  over 
offenses  committed  by  one  Indian  upon  the  person  of  another, 
and  this  includes,  by  virtue  of  the  statutes,  both  Indians  by  birth 
and  Indians  by  adoption.  The  Cherokee  Nation  claimed  jurisdic- 
tion over  the  defendants.  This  claim  was  denied  by  the  Circuit 
Court,  which  held  that  the  evidence  of  Rutherford's  adoption  by 
the  Nation  was  not  sufficient,  and  that  therefore  the  United  States 
court  had  jurisdiction  of  the  offense.  An  amendment  in  1866  to 
section  5  of  article  3  of  the  Cherokee  constitution  gives  the  fol- 
lowing definition  of  citizenship:  "All  native-born  Cherokees,  all 
Indians  and  whites  legally  members  of  the  Nation  by  adoption, 
.  .  .  .  and  their  descendants,  who  reside  within  the  limits  of 
the  Cherokee  Nation,  shall  be  taken  and  be  deemed  to  be  citizens 
of  the  Cherokee  Nation."  (Laws  of  Cherokee  Nation,  1892,  p.  33.) 
The  Cherokee  statutes  make  it  clear  that  all  white  men  legally 
married  to  Cherokee  women  and  residing  within  the  Nation  are 
adopted  citizens.  (Sections  659,  660,  661,  662,  663,  666  and  667, 
Laws  of  the  Cherokee  Nation,  1892,  pp.  329,  and  following.)  Sec- 
tion 659  requires  that  before  such  marriage  shall  be  solemnized  the 
parties  shall  obtain  a  license  from  one  of  the  district  clerks.  Sec- 
tions 660  and  661  provide  that  one  applying  for  such  license  shall 
present  to  the  clerk  a  certificate  of  good  moral  character,  signed  by 
at  least  ten  respectable  citizens  of  the  Cherokee  Nation,  and  shall 
also  take  an  oath  of  allegiance.  On  October  4,  1894,  Rutherford 
was  married  to  Mrs.  Betsy  Holt,  a  Cherokee  woman.  The  mar- 
riage license,  with  the  certificate  of  the  minister  of  the  performance 
of  the  ceremony,  and  the  indorsement  of  the  record  of  the  certifi- 
cate, is  as  follows: 

**  Marriage  License. 

"Cherokee  Nation,  Tahlequah  District. 
"To  any  person  legally  authorized,  greeting: 
You  are  hereby  authorized  to  join  in  the  holy  bonds  of  matri- 


NOFIRE  V.  UNITED  STATES.  155 

mony  and  celebrate  the  rites  and  ceremonies  of  marriage  between 
Mr.  Fred.  Rutherford,  a  citizen  of  the  United  States,  and  Miss 
Betsy  Holt,  a  citizen  of  the  Cherokee  Nation,  and  you  are  required 
to  return  this  license  to  me  for  record  within  thirty  days  from 
the  celebration  of  such  marriage,  with  a  certificate  of  the  same 
appended  thereto  and  signed  by  you. 

"Given  under  my  hand  and  seal  of  office  this  the  28th  day  of 
August,  1894. 

(Seal  of  Tahlequah  district,  Cherokee  Nation.) 
*'R.  M.  Dennenberg, 

^^ Deputy  Clerk,  Tahlequah  District." 


The  performance  of  the  marriage  ceremony  was  also  proved  by 
the  minister  a  regularly  ordained  Presbyterian  preacher.  T.  W. 
Triplett  was  the  clerk  of  the  Tahlequah  district  at  the  date  of 
this  certificate.  R.  M.  Dennenberg  was  his  deputy,  but  at  the 
time  of  the  issue  of  the  license  both  the  clerk  and  his  deputy  were 
absent,  and  the  signature  of  the  deputy  was  signed  by  John  C. 
Dennenberg,  his  son.  The  clerk,  the  deputy  and  his  son,  each  tes- 
tified that  the  latter  was  authorized  to  sign  the  name  of  the  clerk 
or  the  deputy  in  the  absence  of  either,  and  that  the  business  of  the 
office  was  largely  transacted  by  this  young  man,  although  not  a 
regularly  appointed  deputy.  He  made  quarterly  reports,  fixed 
up  records  and  issued  scrip,  and  his  action  in  these  respects  was 
recognized  by  the  clerk  and  the  Nation  as  valid.  No  petition,  as 
required  by  the  statute,  was  found  among  the  papers  of  the  office, 
but  there  was  testimony  that  all  the  papers  of  the  office  had  been 
destroyed  by  fire  since  the  date  of  the  marriage  license,  and  the 
younger  Dennenberg  testified  that  a  petition  was  presented  con- 
taining the  names  of  ten  citizens;  that  he  could  not  remember  the 
names,  but,  at  the  time,  made  inquiry  and  satisfied  himself  that 
they  were  all  respectable  Cherokee  citizens.  There  was  testimony 
also  that  Rutherford  offered  to  vote  at  an  election  subsequent  to 
his  marriage;  that  his  vote  was  challenged,  and  on  inquiry  it  was 
ascertained  that  he  was  a  Cherokee  citizen,  and  his  vote  received. 
Upon  these  facts  the  question  is  presented  whether  Rutherford 
was  a  Cherokee  citizen  by  adoption.  The  Circuit  Court  held  that 
the  evidence  was  insufficient  to  show  that  fact,  and  that  therefore 
that  court  had  jurisdiction. 

With  this  conclusion  we  are  unable  to  concur.     The  fact  that 
an  official  marriage  license  was  issued  carries  with  it  a  presumption 


156  DE  FACTO  OFFICERS. 

that  all  statutory  prerequisites  thereto  had  been  complied  with. 


It  is  true  that  the  younger  Dennenberg,  who  signed  the  mar- 
riage license,  was  neither  clerk  nor  deputy,  but  he  was  an  officer 
de  facto,  if  not  de  jure.  He  was  permitted  by  the  clerk  and  the 
deputy  to  sign  their  names;  he  was  the  only  person  in  charge  of 
the  office;  he  transacted  the  business  of  the  office,  and  his  acts  in 
their  behalf  and  in  the  discharge  of  the  duties  of  the  office  were 
recognized  by  them  and  also  by  the  Cherokee  Nation  as  valid. 
Under  those  circumstances  his  acts  must  be  taken  as  official  acts, 
and  the  license  which  he  issued  as  of  full  legal  force.  As  to  third 
parties,  at  least  he  was  an  officer  de  facto;  and  if  an  officer  de  facto, 
the  same  validity  and  the  same  presumptions  attached  to  his  actions 
as  to  those  of  an  officer  de  jure. 

.  .  .  The  Cherokee  Nation  not  only  recognized  the  acts  of 
young  Dennenberg  as  the  acts  of  the  clerk,  but  since  the  death  of 
Rutherword  it  has  asserted  its  jurisdiction  over  the  Cherokees 
who  did  the  killing — a  jurisdiction  which  is  conditioned  upon  the 
fact  that  the  party  killed  was  a  Cherokee  citizen. 

It  appears,  therefore,  that  Rutherford  sought  to  become  a  citi- 
zen, took  all  the  steps  he  supposed  necessary  therefor,  considered 
himself  a  citizen,  and  that  the  Cherokee  Nation  in  his  lifetime 
recognized  him  as  a  citizen  and  still  asserts  his  citizenship.  Under 
those  circumstances,  we  think  it  must  be  adjudged  that  he  was  a 
citizen  by  adoption,  and  consequently  the  jurisdiction  over  the  of- 
fense charged  herein  is,  by  the  laws  of  the  United  States  and 
treaties  with  the  Cherokee  Nation,  vested  in  the  courts  of  that 
Nation. 

The  judgment  of  the  Circuit  Court  must  be  reversed  and  the 
case  remanded  with  instructions  to  surrender  the  defendants  to 
the  duly  constituted  authorities  of  the  Cherokee  Nation. 


MCCAHON   V,    COMMISSIONERS.  157 

JAMES  McCAHON  V.  THE  COMM'RS  OF  LEAVENWORTH 

CO. 

Supreme  Court  of  Kansas.    July,  1871. 
8  Kansas,  437. 

Valentine,  J,  Only  one  question  requires  our  special  consid- 
eration in  this  case,  and  that  is,  whether  John  T.  McWhirt  and 
certain  other  persons  acting  with  him  were  on  the  16th  of  March, 
1869,  de  facto  the  board  of  county  commissioners  of  the  county  of 
Leavenworth.  That  they  were  not  de  jure  said  board,  and  that 
there  was  another  set  of  men  who  were  de  jure  said  board,  is  con- 
ceded by  both  parties;  but  it  is  claimed  by  the  plaintiff  in  error 
that  said  McWhirt  and  his  associates  were  de  facto  said  board. 

On  the  16th  of  March,  1869,  the  plaintiff  presented  to  said  Mc- 
Whirt and  his  associates  an  account  against  said  county  for  pro- 
fessional services  as  an  attorney-at-law,  and  said  McWhirt  and 
his  associates  allowed  it.  The  plaintiff  then  sued  the  county  upon 
this  allowance  and  not  upon  the  original  account.  The  counsel  for 
the  defendants  claims  that  McWhirt  and  his  associates  were  not 
the  board  of  county  commissioners  either  de  jure  or  de  facto. 

Were  said  McWhirt  and  his  associates  de  facto  the  board  of 
county  commissioners  of  the  county  of  Leavenworth?  The  court 
below  finds  that  "they  were  neither  the  county  commissioners  de 
jure  nor  de  facto,  but  were  usurpers,  and  had  no  authority  to 
audit  and  allow  the  plaintiff's  account;"  and  this  finding,  we  think, 
is  in  harmony  with  the  other  findings.  A  de  facto  officer  must  be 
in  fact  the  officer.  He  must  be  in  the  actual  possession  of  the 
office,  and  have  the  same  under  his  actual  control.  De  facto 
means,  in  law,  as  well  as  elsewhere,  "of  fact,  from,  arising  out  of, 
or  founded  in  fact;  in  fact,  in  deed;  in  point  of  fact;  actually; 
really."  Burrell's  Law  Diet.  If  the  officer  de  jure  is  in  posses- 
sion of  the  office;  if  the  officer  de  jure  is  also  the  officer  de  facto, 
then  no  other  person  can  be  an  officer  de  facto  for  that  office.  Two 
persons  cannot  be  officers  de  facto  for  the  same  office  at  the  same 
time ;  Boardman  v.  Holliday,  10  Paige,  223,  232 ;  Morgan  v.  Quack- 
enhush,  22  Barb.  72,  80.  And  where  an  office  has  been  created  to 
be  held  by  one  person  only,  two  or  more  persons  cannot  hold  the 
same  as  tenants  in  common.  In  the  present  case  the  regular  and 
de  jure  board  of  county  commissioners  were  elected  in  November, 
1867.  They  would,  under  the  law,  hold  their  offices  until  the  sec- 
ond Monday  of  January,  1870 :  Art.  11,  §  3,  Const. ;  Comp.  Laws, 


158  DE  FACTO  OFFICERS. 

500,  §  40;  Gen.  Stat.,  418,  §  58;  Leavenworth  Co.  v.  The  State  ex 
rel.  Latta,  5  Kas.,  688.  They  had  been  in  the  actual  possession, 
and  had  the  exclusive  control  of  their  respective  offices  for  more 
than  a  year  before  McWhirt  and  his  associates  claimed  to  be 
county  commissioners.  There  is  nothing  in  the  record  of  this  case 
that  shows  that  any  one  of  the  offices  had  become  vacant,  nothing 
that  shows  that  any  one  of  such  officers  had  died,  resigned,  re- 
moved from  his  district,  or  from  the  county,  or  had  been  removed 
from  his  office.  There  is  nothing  that  shows  that  such  officers  or 
any  one  of  them  were  ever  ousted  from  office,  or  that  they  ever 
in  any  manner  abandoned  the  same;  but  they  continued  to  be  de 
facto  as  well  as  de  jure  county  commissioners  down  to  the  time  of 
the  trial  of  this  case;  hence  there  was  no  room  for  McWhirt  and 
his  associates  to  become  de  facto  county  commissioners.  Such  of- 
ficers were  already  filled  by  officers  de  facto  and  de  jure. 

McWhirt  and  his  associates  never  got  possession  of  said  offices. 
If  they  had  been  legally  elected  they  should  have  taken  possession 
of  said  offices  on  January  11th,  1869.  (Gen.  Stat.,  418,  §  58.)  But 
they  did  not  attempt  to  take  possession  of  the  same  until  Febru- 
ary 2d,  1869.  Then  they  met  without  any  authority  whatever, 
it  not  being  the  time  for  the  board  to  meet,  and  being  just  one  day 
after  the  regular  board  had  adjourned,  and  declared  themselves  to 
be  the  board  of  county  commissioners  of  Leavenworth  county: 
but  no  other  person,  board,  or  officer,  except  the  plaintiff,  ever 
recognized  them  as  such.  We  are  now  speaking  of  what  the  record 
in  this  case  shows.  Possibly  the  facts  may  have  been  different.  It 
is  true,  they  ''met  together  in  the  clerk's  office,"  and  the  clerk 
"kept  a  record  of  their  proceedings;"  but  the  clerk  never  attested 
such  record  with  his  signature,  nor  with  the  seal  of  the  county,  as 
he  does  the  record  of  the  proceedings  of  the  legally  constituted 
board  of  county  commissioners.  (Gen.  Stat.,  263,  §  43.)  It  seems 
the  clerk  did  not  choose  to  recognize  them  as  a  board  of  county 
commissioners.  There  is  nothing  to  show  that  this  record  which 
was  kept  by  the  clerk  was  kept  in  the  books  of  the  county.  It  does 
not  seem  from  the  record  in  this  case  that  McWhirt  and  his  asso- 
ciates ever  got  possession  of  any  of  the  property  of  the  county, 
or  of  any  of  the  records,  books,  papers,  the  seal,  or  of  anything  else 
belonging  to  the  county  or  connected  in  any  manner  with  the  office 
of  county  commissioners.  The  clerk  ceased  to  keep  any  record  of 
their  proceedings  eight  days  before  the  said  allowance  of  the  said 
plaintiff's  account,  and  no  record  of  any  kind  was  ever  made  of 


STATE    V.    GARDNER.  159 

such  allowance,  and  no  county  order  was  ever  issued  therefor. 
Under  the  circumstances  of  this  case  we  do  not  think  that  McWhirt 
and  his  associates  can  be  considered  as  county  commissioners  de 
facto.  The  judgment  of  the  court  below  must  therefore  be  af- 
firmed. 

Kingman,  C.  J.,  concurring. 

Brewer,  J.,  did  not  sit  in  the  case. 


STATE  V.  GARDNER. 

'Supreme  Court  of  Ohio.    1896. 
54  Ohio  St.  24. 

Bradbury,  J.  At  the  September  term  of  the  court  of  common 
pleas  of  Summit  county,  Omar  N.  Gardner  was  indicted  for  of- 
fering a  bribe  to  Joseph  Hugill,  a  city  commissioner  of  the  city 
of  Akron.  The  accused  demurred  to  the  indictment  on  the  ground 
that  the  act  of  April  20,  1893,  under  which  Hugill  was  performing 
the  duties  of  his  office,  was  unconstitutional  and  void.  The  de- 
murrer was  sustained  and  the  defendant  discharged.  To  this  hold- 
ing of  the  court  the  prosecuting  attorney  excepted,  and  .  .  . 
has  brought  the  question  to  this  court  for  review.  Two  questions 
are  presented  by  the  record:  1.  Whether  the  act  of  April  20, 
1893,  which  provides  a  municipal  government  for  the  city  of 
Akron,  is  unconstitutional  or  not,  and  2,  if  unconstitutional 
whether  its  constitutionality  may  be  assailed  in  the  collateral  way, 
undertaken  by  the  accused.  The  first  question  which  logically 
arises,  is  the  latter  of  the  two;  for  if  the  accused  should  not  be 
allowed  to  raise  the  question,  in  the  way  he  attempted,  it  follows 
that  the  constitutionality  of  the  act  which  created  the  office  was 
not  before  the  court.  Whether  an  act  of  the  general  assembly  cre- 
ating an  office  and  providing  a  method  for  filling  it  may  be  col- 
laterally attacked,  is  a  question  of  the  utmost  importance  in  the 
practical  administration  of  governmental  affairs.  Different  courts 
have  decided  the  question  differently.  Leach  v.  The  People,  122 
111.  420;  Burts  v.  Winona  &  St.  P.  B.  Co.,  18  N.  W.  Rep.  285; 
Coyle  V.  Commonwealth,  104  Pa.  St.  117;  Mechem  on  Public  Of- 
ficers, sections  318,  327;  Van  Fleet  on  Collateral  Attack,  section 


160  DE  FACTO  OFFICERS. 

21,  page  33 ;  Norton  v.  Shelby  County,  118  U.  S.  425 ;  Hildreth  v. 
Mclntire,  1  J.  J.  Marsh  206. 

If  the  official  acts  of  officers,  acting  in  an  office  created  by  an 
unconstitutional  statute,  should  be  regarded  as  falling  within  the 
principle  that  sustains  the  acts  of  de  facto  officers,  until  the  statute 
has  been  held  unconstitutional  by  competent  judicial  authority  in 
a  proceeding  appropriate  to  that  end,  all  difficulty  vanishes.  The 
opposite  doctrine  is  based  upon  the  assertion  that  there  can  be  no 
de  facto  officer,  unless  there  is  a  de  jure  office.  That  is  a  simple 
and  summary  way  to  dispose  of  this  grave  question.  That  there 
can  be  no  de  jure  officer  without  a  de  jure  office  is  a  proposition 
to  which  all  minds  will,  of  course,  assent.  But  that  there  can  be  no 
de  facto  officer  without  a  de  jure  office,  is  disputable,  if  the  phrase 
*'de  facto  officer"  includes  one  who  in  fact  discharges  the  duties 
of  a  public  office,  recognized  by  the  great  body  of  the  people  and 
by  virtue  of  a  statute  solemnly  passed  by  the  general  assembly  of 
the  state,  which  may  be  unconstitutional.  That  there  have  been 
many  officers  who  occupied  and  discharged  the  duties  of  offices 
created  by  laws  that  were  afterwards  held  unconstitutional  is  a 
fact  well  known  to  every  one.  While  in  such  occupancy  innu- 
merable official  acts,  affecting  both  public  and  private  rights, 
may  have  been  actually  performed  by  them;  the  duration  of  the 
office  may,  and  often  does,  extend  through  a  series  of  years.  In 
the  case  before  us  the  act  in  question  is  one  creating  a  municipal 
government  for  the  city  of  Akron,  and  has  been  in  force  since  its 
enactment  in  April,  1893;  it  superseded  an  act  passed  in  the  year 
1891  for  the  government  of  that  city,  which  latter  act  was  subject 
to  the  same  assault  that  was  attempted  to  be  made  on  the  one  under 
consideration.  The  existing  government  of  the  populous  and 
thriving  city  of  Youngstown,  also  rests  upon  the  act  now  assailed. 
While  that  of  the  city  of  Springfield  depends  upon  an  act,  at  least 
as  vulnerable  to  the  same  attack,  as  the  act  under  consideration. 
The  constitutionality  of  the  governments  of  the  cities  of  Spring- 
field and  Youngstown  have  not  been  assailed,  even  collaterally, 
and  may  continue  unchallenged  for  many  years.  The  officers  who 
in  these  cities  occupy  offices  created  by  the  act  upon  which  the  city 
government  rests,  are  daily  discharging  duties  affecting  the  rights 
of  the  city,  and  the  private  rights  of  individuals.  These  officers 
are  either  usurpers  or  trespassers,  or  de  facto  officers ;  if  the  latter, 
the  rights  of  the  public,  or  of  individuals  who  have  submitted  to 
their  authority,  or  acquiesced  in  its  exercises,  would  be  unaffected 


STATE    V.    GARDNER.  161 

by  a  subsequent  authoritative  judicial  declaration  that  the  statute 
was  unconstitutional;  if  they  were  usurpers  merely,  every  of- 
ficial act  would  be  a  nullity,  and.  interminable  confusion  possibly 
follow  such  a  decision.  Were  such  results  to  follow,  the  court 
might  well  pause  before  declaring  unconstitutional  an  act  estab- 
lishing a  city  government,  unless  its  constitutionality  was  chal- 
lenged upon  the  threshold  of  its  existence. 

The  common  law  in  relation  to  de  facto  officers  had  its  origin 
in  England;  it  was  there  laid  upon  a  foundation  as  broad  as  their 
necessities  required.  Such  a  thing  as  a  written  constitution  con- 
trolling legislative  action  was  unknown  to  their  jurisprudence; 
whatever  office  parliament  chose  to  create  was  a  de  jure  office.  In 
the  states  of  the  American  Union,  however,  we  find  written  consti- 
tutions, limiting  the  otherwise  absolute  power  of  the  people  to  act 
through  the  legislative  branch  of  the  government.  As  a  conse- 
quence of  this  peculiar  feature  of  our  government,  a  statute,  reg- 
ularly enacted  by  the  legislative  branch  thereof,  may,  in  express 
terms,  create  a  public  office,  or  it  may  authorize  a  municipal  cor- 
poration to  create  one ;  an  incumbent  may  be  appointed  in  the  mode 
prescribed  by  the  statute,  he  may  qualify,  enter  upon  the  discharge 
of  the  duties  of  the  office,  and  continue  to  discharge  those  duties 
indefinitely — possibly  for  many  years — during  which  he  daily  per- 
forms official  acts  affecting  not  only  public  rights,  but  private 
rights  of  the  most  sacred  character.  After  all  this  has  occurred 
the  constitutionality  of  the  statute  is  successfully  challenged,  and 
the  statute  declared  void,  and  for  the  first  time  in  the  history  of 
the  common  law  its  principles  must  be  invoked  to  ascertain  the 
status  of  the  rights  of  persons,  and  of  the  public,  that  accrued 
before  the  law  was  declared  void. 

We  think  that  principle  of  public  policy,  declared  by  the  Eng- 
lish courts  three  centuries  ago,  which  gave  validity  to  the  official 
acts  of  persons  who  intruded  themselves  into  an  office  to  which 
they  had  not  been  legally  appointed,  is  as  applicable  to  the  con- 
ditions now  presented  as  they  were  to  the  conditions  that  then 
confronted  the  English  judiciary.  We  are  not  required  to  find  a 
name  by  which  officers  are  to  be  known,  who  have  acted  under  a 
statute  that  has  subsequently  been  declared  unconstitutional, 
though  we  think  that  such  officers  might  aptly  be  called  ^'de  facto 
officers."  They  actually  performed  official  acts  authorized  by  an 
act  solemnly  enacted  by  the  law-making  department  of  the  govern- 
ment. Such  a  statute  is  presumed  to  be  constitutional.  'Railroad 
11 


162  DE  FACTO  OPFICEES. 

V.  Commissioners  of  Clinton  County,  1  Ohio  St.  77.  The  unbroken 
current  of  authority  supports  this  proposition. 

Courts  in  the  practical  administration  of  justice  should  regard 
the  substance  of  things  and  deal  with  conditions  as  they  actually 
exist.  Here  are  grave  and  important  official  acts  actually  per- 
formed by  virtue  of  an  office,  created  under  the  provisions  of  a 
statute  regularly  enacted  by  that  branch  of  the  government  to 
which  power  to  make  laws  has  been  delegated  by  the  constitution; 
there  is  a  clearly  established  legal  presumption  of  its  validity.  The 
public  in  its  organized  capacity,  as  well  as  private  citizens,  has 
acquiesced  in  and  submitted  to  their  authority.  Such  circum- 
stances, the  majority  of  the  court  are  of  opinion,  are  sufficient  to 
give  such  color  to  their  title  as  to  make  them  de  facto  officers ;  but 
whether  they  fall  within  the  previously  existing  definition  of  such 
officers  or  not,  their  official  acts  thus  performed  fall  within  the 
protection  of  that  principle  of  public  policy  which  defends  them 
against  collateral  attack,  and  that,  therefore,  the  question  of  the 
constitutionality  of  the  statute  in  question  was  not  before  the  court 
of  common  pleas. 

Spear.  J.  (concurring). 

It  is  not  here  assumed  that  there  is  not  disagreement  among  au- 
thorities. There  is.  Perhaps,  Norton  v.  Shelby  County,  118  U.  S. 
425,  is  most  relied  on  as  sustaining  the  contrary  doctrine.  In 
that  case  the  legislature  of  Tennessee  had  undertaken,  by  statute, 
to  constitute  for  the  county  of  Shelby  a  board  of  commissioners 
to  be  appointed  by  the  governor,  and  clothe  it  with  all  the  powers 
and  duties  then  possessed  by  the  quarterly  court  of  the  county, 
composed  of  the  justices  of  the  peace  who  had  been  elected  by  the 
people.  This  county  court  was  one  of  the  institutions  of  the  state 
recognized  in  the  constitution.  County  commissioners  are  wholly 
unknown  to  the  constitution,  and  therefore,  to  the  laws.  There 
was  no  acquiescence  by  the  justices  or  the  people ;  on  the  contrary, 
there  was  immediate  and  continued  public  opposition,  by  suit  and 
otherwise,  on  the  part  of  justices  and  others  until  the  final  dispo- 
sition of  the  case.  Meantime,  in  the  face  of  the  opposition  and  the 
litigation,  the  board  subscribed  to  stock  and  issued  railroad  bonds 
of  the  county  to  the  amount  of  about  $29,000,  and  the  liability 
of  the  county  on  these  bonds  was  the  subject  of  the  suit.  It  must 
be  apparent  at  a  glance  that  we  have  before  us  no  such  case.  In 
that  case  there  was,  according  to  the  holding  of  the  supreme  court 
of  Tennessee,  no  power  in  the  legislature  to  authorize  the  appoint- 


STATE    V.    GARDNER.  163 

ment  of  county  commissioners  with  such  powers,  by  any  form  of 
statute,  while  in  our  case  the  power  to  create  a  board  of  city  com- 
missioners for  Akron  is  unquestioned,  and,  if  the  proper  classifica- 
tion has  been  prescribed  no  one  doubts  that  it  is  a  board  de  jure. 
As  against  protest  and  objection  from  the  start  in  the  Tennessee 
case,  we  have,  in  our  case,  universal  assent  and  acquiescence  on 
the  part  of 'everybody  for  years.  But  it  is  insisted  that  the  decla- 
rations of  law  given  out  by  the  court,  irrespective  of  the  judgment 
rendered,  control  this  case.  Do  they?  It  is  there  said:  '*An 
unconstitutional  act  is  not  a  law;  it  confers  no  rights;  it  imposes 
no  duties ;  it  affords  no  protection ;  it  creates  no  ofl&ce ;  it  is,  in  legal 
contemplation,  as  inoperative  as  though  it  had  never  been  passed."^ 
It  is  not  necessary  to  question  the  aptness  of  this  language  as  ap- 
plied to  the  Tennessee  case,  but  when  it  is  sought  to  apply  it  to 
the  situation  in  this  state,  and  to  our  case,  we  think  it  opposed 
by  the  better  authorities  and  the  better  reason.  All  legislative 
authority  is  vested  in  our  general  assembly.  That  body  enacts  the 
laws.  It  is  just  as  much  its  duty  to  observe  the  constitution  as  it 
is  the  duty  of  any  other  branch  of  the  government.  The  presump- 
tion is,  as  declared  in  Railroad  v.  Commissioners ,  1  Ohio  St.  77, 
and  nowhere  disputed,  that  in  the  enactment  of  laws  they  heed 
that  duty.  To  say,  then,  that  a  statute  which,  by  all  presumptions, 
is  valid  and  constitutional  until  set  aside  as  invalid  by  judicial 
authority,  cannot,  in  the  meantime,  confer  any  right,  impose  any 
duty,  afford  any  protection,  but  is  as  inoperative  as  though  it  had 
never  been  passed,  is  at  least  startling.  To  say  that  a  statute 
which  purports  to  create  a  constitutional  office,  duly  enacted  by 
our  general  assembly,  and  duly  promulgated,  enjoins  no  duty  of 
respect  or  obedience  by  the  people,  and  affords  no  corresponding 
right  of  protection,  and  that  all  who  undertake  to  enforce  its  de- 
mands do  so  at  their  peril,  and  at  the  risk  of  being  deemed  tres- 
passers and  usurpers,  in  case  it  shall  be  finally  decided  to  be  un- 
constitutional, by  a  bare  majority,  perhaps,  of  the  court  of  last 
resort,  no  matter  what  public  necessities  existed  for  its  enforce- 
ment, nor  what  public  approval  and  acquiescence  there  may  have 
been,  nor  for  how  long  a  term  of  years,  and  no  matter  how  many 
holdings  of  intermediate  courts  there  may  have  been  sustaining  its 
constitutionality,  is  to  invite  riot,  turmoil  and  chaos.  It  is  not 
the  law  in  Ohio. 

If  the  people  may  reasonably  be  expected  to  have  sufficient 
knowledge  of  the  constitution  so  that  when  called  upon  to  deal  with 
one  exercising  the  functions  of  an  office  they  may  intelligently 


164  DE  FACTO  OFFICERS, 

inquire  far  enough  to  ascertain  whether  the  office  be  one  which  the 
constitution  creates,  or  gives  authority  to  the  general  assembly  to 
create,  it  certainly  is  not  reasonable  to  expect  the  people  to  be 
wise  enough  to  determine  for  themselves,  and  at  their  peril, 
whether  the  general  assembly,  in  its  efforts  to  establish  an  office 
which  it  has  the  most  unquestioned  right  to  establish,  has  observed 
all  the  requirements  of  the  constitution. 

It  is  sought  to  dispose  of  this  case  by  use  of  the  phrase  that 
there  can  be  no  officer  de  facto  unless  there  is  an  office  to  fill.  The 
proposition  begs  the  question.  The  obvious  answer  is  that  there 
is  an  office  to  fill  whenever  our  law-making  power,  exercising  its 
authority  to  create  a  constitutional  office,  by  a  duly  enacted  and 
promulgated  statute,  ordains  there  shall  be  such  office,  and  it  re- 
mains an  office  Until  the  act  is  repealed  or  held  unconstitutional 
by  a  court  of  competent  authority,  in  a  proceeding  to  which  the 
one  holding  the  office  is  a  party,  who,  in  the  meantime,  his  election 
or  appointment  being  regular,  and  the  public  acquiescing  in  his 
discharge  of  the  duties,  is  an  officer  whose  title  can  be  questioned 
only  by  the  state  itself. 

It  seems  to  be  conceded  that,  on  grounds  of  public  policy,  one 
occupying  an  existing  de  jure  office  should  be  regarded  an  officer 
de  facto,  although  his  appointment  thereto  is  pursuant  to  an  un- 
constitutional statute.  Does  any  reason  exist  why  the  same  public 
policy  will  not  require  that  one  occupying,  with  general  accept- 
ance, an  office  which  the  general  assembly  has  power  to  create, 
should  likewise  be  judged  an  officer  de  facto,  although  in  the  exer- 
cise of  the  power  by  the  assembly,  constitutional  requirements 
have  not  been  observed?  If  any  such  reason  does  exist  certain  it 
is  that  none  has  been  adduced,  but  instead  the  maxim  that  there 
can  be  no  de  facto  officer  unless  there  be  a  de  jure  office  is  invoked. 
Summed  up  in  brief,  the  substantial  ground  of  objection  urged 
against  the  state's  position  is  that  it  antagonizes  well-known  max- 
ims of  the  law,  and  is  illogical.  Maxims,  like  definitions,  have 
their  uses;  but  it  is  not  wise  to  rely  absolutely  on  them,  for  they 
are  often  inexact.  A  discriminating  writer  has  said:  "Maxims 
are  attractive  because  they  seem  to  offer  the  conclusions  of  wis- 
dom in  a  portable  form,  but  legal  principles  are  not  capable  of 
definition  after  the  fashion  of  the  exact  sciences,  because  the  law 
is  not  a  science,  in  the  scientific  sense,  and  the  attempt  to  express 
its  principles  in  rules  of  mathematical  precision  misleads  oftener 
than  it  enlightens."    It  may  be  added  that  maxims  and  aphorisms 


STATE    V.    GARDNEB.  165 

are  among  the  tritest,  not  to  say  the  cheapest,  weapons  of  legal 
contests.  If  one  may  annihilate  an  opponent's  position  by  attack- 
ing it  with  a  maxim,  or  a  phrase,  the  conquest  is  easy,  for  the 
legal  quiver  is  full  of  them.  It  is  equally  easy  to  assume,  as 
proven,  contested  propositions,  and  from  them  advance  with  con- 
fidence to  desired  conclusions.  This  is  logic,  perhaps,  but  there 
are  times  when  logic  fails.  The  law  is  intended  for  practical  use. 
By  the  act  in  question  local  governments  are  erected  in  the  cities 
coming  within  the  description,  and  the  necessary  officers  are  pro- 
vided to  carry  on  the  government  in  those  localities.  On  certain 
officers  named  is  imposed  the  duty  to  put  the  law  in  operation  by 
appointing  the  commissioners.  As  before  stated  the  law  is  pre- 
sumed to  be  constitutional.  Should  those  officers  be  expected  to 
go  into  an  inquiry  to  demonstrate  that  they  have  no  power  to  do 
what  the  statute  directs  them  to  do?  At  all  events,  they  raise 
no  question,  but  proceed  with  the  duty,  and  fully  equipped  city 
governments  result,  which  the  community  recognizes,  and  the  prop- 
erty rights  of  the  people,  and  public  order  as  well,  depend  upon 
the  acts  of  such  commissioners  in  the  performance  of  duties  im- 
posed by  statute.  And  yet  we  are  told  that  these  proceedings, 
whenever  questioned  collaterally,  are  to  be  adjudged  void,  because 
the  statute  "creates  no  office,  imposes  no  duty,  confers  no  right, 
affords  no  protection,  and  is  as  inoperative  as  though  it  had  never 
been  passed."  The  mischiefs  and  troubles  which  would  follow 
such  a  result  are  against  reason,  and  are  so  apparent  that  no  enu- 
meration of  them  is  needed. 

It  would  seem  plain  that  the  proceedings  to  challenge  such  a 
legislative  act  should  be  a  direct  one  to  which  the  officer  is  a  party, 
so  that  the  judgment  of  the  court  may  have  the  direct  effect  of 
settling  the  question  permanently,  and  for  the  whole  world,  in 
such  manner  that  it  could  not  afterward  be  made  the  subject  of 
judicial  investigation. 

Shauck,  J.  (dissenting). 


166  ,  DE  PACTO  OPFICEBS. 


HARVEY  V.  PHILBEICK. 

Supreme  Court  of  New  Jersey.    November,  1886. 
49  New  Jersey  Law,  374. 

Parker,  J.  The  following  facts  appear  in  the  written  agree- 
ment of  the  counsel  for  the  respective  parties,  viz. : 

1.  That  the  "borough  commission  of  Ocean  Beach  was  incor- 
porated under  the  laws  of  the  State  of  New  Jersey,  entitled  *Au 
act  for  the  formation  of  borough  commissions,'  approved  March 
7th,  1882,  and  the  supplements  thereto." 

2.  That  an  election  for  seven  commissioners  and  other  officers 
of  said  borough  was  held  on  May  12th,  1886,  and  at  such  election 
such  officers  were  elected. 

3.  That  at  such  election  Frank  P.  Philbrick  was  elected  col- 
lector of  said  borough  commission. 

4.  That  said  Frank  P.  Philbrick  is  still  collector  of  said  bor- 
ough commission. 

5.  That  the  collector  is,  by  virtue  of  the  laws  of  New  Jersey, 
entitled  "An  act  providing  for  additional  powers  and  certain 
changes  in  the  government  of  certain  localities  governed  by  com- 
missioners," passed  April  17th,  1884,  the  treasurer  of  said  bor- 
ough. 

6.  That  said  borough  commission  is  justly  indebted  to  David 
Harvey,  Jr.,  the  relator,  in  the  sum  of  $53.15 ;  and  that  at  a  meet- 
ing of  the  commissioners,  held  on  May  6th,  1887,  it  was  resolved  by 
said  commissioners  that  said  bill  be  passed  and  that  an  order  be 
drawn  upon  the  said  treasurer  for  the  amount  thereof. 

7.  That  an  order  was  drawn  upon  said  treasurer,  under  said 
resolution,  in  proper  form,  and  signed  by  the  president  and  secre- 
tary of  the  commission,  which  order  was  given  to  the  relator. 

8.  That  the  relator  presented  said  order  to  Frank  P.  Phil- 
brick, treasurer  as  aforesaid,  and  he  refused  to  pay  the  same,  al- 
leging, as  the  only  reason  for  such  refusal,  that  the  borough  of 
Ocean  Beach  was  not  legally  organized,  the  Borough  act  being 
unconstitutional. 

9.  That  there  were,  at  the  time  of  the  presentation  of  said 
order  to  the  said  Frank  P.  Philbrick,  treasurer  as  aforesaid,  and 
now  are,  sufficient  funds  in  the  hands  of  said  treasurer  to  pay 
said  order. 

Under  this  state  of  facts  the  relator  prays  that  a  writ  of  nian- 


THE  PEOPLE  EX  EEL.   WINSTA>rLEY  V.   WEBER.  167 

damns  issue,  directed  to  the  said  Frank  P.  Philbrick,  treasurer  as 
aforesaid,  commanding  him  to  pay  to  said  relator  the  amount  of 
said  order  out  of  the  funds  in  his  hands  as  said  treasurer  upon 
presentation  to  him  of  said  order. 

The  mere  statement  of  the  facts  agreed  upon  by  the  respective 
counsel  clearly  shows  that  the  mandamus  should  issue.  It  mat- 
ters not  whether  the  act  authorizing  the  formation  of  borough 
governments  be  constitutional,  or  whether  the  government  of  the 
borough  of  Ocean  Beach  be  properly  organized  under  the  act. 
The  commissioners  and  treasurer  were  de  facto  officers.  The  com- 
missioners contracted  the  debt  and  they  had  authority  to  audit  the 
bill  and  direct  its  payment  by  the  treasurer  out  of  the  funds  of 
the  borough  in  his  hands. 

The  treasurer  had  no  option.  His  duty  was  to  pay  the  bill  upon 
presentation  to  him  of  the  order  by  the  relator.  Let  the  man- 
damus issue. 


III.    Powers  and  Rights. 
THE  PEOPLE  EX  REL.  WINSTANLEY  V.  WEBER. 

Supreme  Court  of  Illinois.    June,  1878. 
89  III.  347. 

This  was  an  application  in  this  court  by  Thomas  Winstanley, 
as  city  treasurer  of  the  city  of  East  St.  Louis,  for  a  writ  of  man- 
damus against  Herman  G.  Weber,  county  collector  of  St.  Clair 
county,  to  compel  him  to  pay  over  to  the  relator  moneys  collected 
by  him  and  taxes  belonging  to  the  city  of  East  St.  Louis.  The 
defendant's  plea  presented  the  question  of  the  validity  of  the  re- 
lator's election. 

Mr.  Justice  Dickey  delivered  the  opinion  of  the  court. 

While  the  acts  of  an  officer  de  facto  are  valid,  in  so  far  as  the 
rights  of  the  public  are  involved  and  in  so  far  as  the  rights  of  third 
persons  having  an  interest  in  such  acts  are  concerned,  still,  where 
a  party  sues  or  defends  in  his  own  right  as  a  public  officer,  it  is 
not  sufficient  that  he  be  merely  an  officer  de  facto.  To  do  this  he 
must  be  an  officer  de  jure.  As  an  officer  de  facto  he  can  claim 
nothing  for  himself.    People  ex  rel.  Sullivan  v.  Weber,  86  111.  283. 

The  commission  under  which  relator  claims  title,  recites  that  it 


168  DB  FACTO  OFFICERS. 

is  issued  in  pursuance  of  an  election  held  on  the  16th  day  of  April, 
1878,  and  the  answer  to  relator's  petition  states  that  "it  is  from 
this  pretended  election  that  relator  obtains  all  the  title  he  has  to 
the  pretended  office  claimed  by  him."  This  allegation  of  the  an- 
swer is  confessed  by  the  demurrer. 

In  the  ease  of  Stephens  v.  The  People  ex  rel.  ante,  337,  we  have 
held  void  the  election  through  which  relator  claims  to  have  ac- 
quired the  supposed  office.  The  condition  of  the  pleading  pre- 
cludes the  relator  from  insisting  that  he  is  an  officer  de  lege,  under 
the  appointment  of  the  mayor.  If  the  pleadings  were  otherwise 
the  appointment  relied  upon  in  argument  gave  no  title  to  the 
office  without  confirmation  by  the  city  council,  and  the  body  by 
which  such  confirmation  is  claimed  was  not  the  proper  body, — was 
not  "the  city  council"  under  the  law.  It  follows  that  the  relator 
is  not  a  public  officer  of  the  character  held  necessary  to  entitle 
him  to  the  relief  sought. 

The  application  for  a  writ  of  mandamus  must  be  denied. 

Mandamus  refused. 


ROMERO  V.  UNITED  STATES. 

Court  of  Claims  of  the  United  States.    AprU,  1889. 
24  Court  of  Claims  Reports,  331. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 

On  the  9th  of  June,  1885,  during  the  recess  of  the  Senate,  the 
claimant  was  commissioned  by  the  President  to  be  agent  for  the 
Indians  of  the  Pueblo  Agency,  in  New  Mexico,  to  fill  a  vacancy 
then  existing,  to  hold  the  office,  according  to  the  form  of  the  com- 
mission, "during  the  pleasure  of  the  President  of  the  United 
States  for  the  time  being,  and  until  the  end  of  the  next  session  of 
the  Senate  of  the  United  States,  and  no  longer." 

He  was  nominated  to  the  Senate  for  appointment  at  the  next 
session,  but  the  Senate  adjourned  on  the  5th  of  August,  1886, 
without  having  acted  thereon.  Still  he  continued  to  exercise  the 
duties  of  the  office  until  September  13,  1886,  when  his  successor 
took  charge  of  the  agency  and  receipted  for  the  property  belong- 
ing thereto. 

He  has  been  paid  the  salary  of  the  office  up  to  the  end  of  the 
session  of  the  Senate,  August  5,  1886.     He  brings  this  suit  to 


ROMERO  V.  UNITED  STATES.  169 

recover  the  salary  of  the  office  from  that  date  until  his  successor 
took  possession. 

In  his  petition  he  sets  up  no  claim  for  compensation  as  mere 
custodian  of  public  property  in  his  possession,  nor  does  he  allege 
or  prove  any  specific  property  intrusted  to  him.  It  may  be  pre- 
sumed that  he  had  some  public  property,  but  its  quantity  and 
character,  and  the  extent  of  responsibility  arising  therefrom,  do 
not  appear.  Nor  does  it  appear  what  would  be  a  reasonable  com- 
pensation for  anything  done  by  him.  The  salary  established  by 
law  for  the  performance  of  all  the  duties  of  the  office  would  not 
be  a  measure  of  compensation  for  the  performance  of  part  only 
of  such  duties.  Many  of  the  services  required  of  an  agent  are  of 
a  higher  order  than  the  mere  custody  of  property  and  maintain- 
ing possession  until  a  successor  is  appointed,  and  in  some  cases 
they  are  delicate  and  confidential.  (Rev.  St.  §§  2058,  2086,  2090; 
Act  of  March  3, 1875,  Supp.  to  Rev.  St.  ch.  132,  §  4,  p.  168.)  Such 
services  were  undoubtedly  taken  into  consideration  by  Congress 
in  establishing  the  salary  of  the  office,  and  went  far  towards  in- 
creasing the  amount.  They  could  no  longer  be  performed  lawfully 
by  the  claimant  after  his  official  term  had  expired.  The  claimant 
must  recover  the  whole  salary  or  nothing,  for  we  have  no  data 
for  apportionment  even  if  that  were  admissible. 

The  judicial  decisions  are  uniform  that  one  claiming  a  salary 
must  prove  his  legal  title  to  the  office,  and  that  an  officer  de  facto 
and  not  de  jure  cannot  maintain  an  action  for  salary 

Two  questions  arise :  First,  did  the  claimant  have  a  title  to  the 
office  after  the  adjournment  of  the  Senate?  Second,  if  not,  then 
is  there  anything  in  this  case  which  takes  it  out  of  the  general 
rule? 

The  Constitution  provides,  in  article  2,  section  3,  paragraph  3, 
that  **the  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate  by  granting  commis- 
sions, which  shall  expire  at  the  end  of  their  next  session."  The 
form  of  the  commission  which  has  been  in  use  from  an  early  day, 
probably  from  the  beginning,  emphasizes  the  idea  of  limitation 
by  adding  the  words  and  no  longer 

On  this  claim  of  holding  over  after  the  expiration  of  the  con- 
stitutional tenure  much  reliance  is  placed  upon  the  decision  of 
the  Supreme  Court  of  California  in  Stratton  v.  Oulton,  28  Cal.  44. 
Stratton  was  State  librarian,  whose  term  of  office,  fixed  by  statute, 
was  four  years.  The  court  held  that  by  common  law  officers  ap- 
pointed for  a  term  of  years  held  until  their  successors  were  ap- 


170  DB  FACTO  OPFICBBS. 

pointed  and  qualified,  and  there  was  nothing  in  the  constitution 
or  statutes  of  California  to  change  that  rule  of  law  held  to  be  in 
force  in  that  State. 

In  view  of  the  Constitution  and  statutes  of  the  United  States, 
the  opinions  of  Attorneys-General  and  of  the  Supreme  Court,  as 
well  as  the  practice  of  the  government  so  far  as  we  have  been 
able  to  ascertain,  we  do  not  think  that  any  such  principle  of  the 
common  law  has  been  adopted  as  applicable  to  public  officers  of  the 
United  States.  Attorney-General  Williams,  in  an  opinion  fur- 
nished to  the  Secretary  of  the  Treasury,  reviewed  the  case  of 
Stratton  v.  OuUon,  and  came  to  a  different  conclusion  from  that 
reached  by  the  California  court  (14  Op.  Att.  Gen.,  262).  Attor- 
ney-General Stanbery  advised  that  the  term  of  the  Secretary  of  the 
Territory  of  New  Mexico  was  limited  to  four  years,  and  after  its 
expiration  the  incumbent  of  the  office  had  no  right  to  exercise  its 
functions  (12  Op.  Att.  Gen.  130) 

Congress  also  has  proceeded  upon  the  view  of  the  law  expressed 
in  these  opinions.  Revised  Statutes,  section  2056,  provides  that 
**Each  Indian  agent  shall  hold  his  office  for  the  term  of  four 
years."  This  was  amended  by  enacting  a  substitute,  May  27, 
1882  (22  Stat.  L.  ch.  163,  §  1,  p.  87),  in  the  same  words,  with  this 
addition,  "and  until  his  successor  is  duly  appointed  and  quali- 
fied." 

Before  the  passage  of  the  latter  act  Indian  agents  appointed 
for  the  term  of  four  years  under  the  former  law  were  never  treated 
nor  regarded  by  the  Interior  Department,  to  which  they  belong, 
as  holding  over  after  the  expiration  of  the  stated  term.  Hence 
the  necessity  of  the  act  of  1882,  which  would  have  been  wholly 
unnecessary  if  the  common-law  rule  of  California  were  in  force 
with  reference  to  the  public  officers  of  the  United  States. 

Independently  of  the  foregoing  considerations,  the  claimant 
urges  that  he  is  entitled  to  recover  under  regulations  made  by  the 
President  by  authority  of    .    .    .    the  Revised  Statutes.     .    .     . 

The  authority  of  the  President  to  make  regulations  is  subject 
to  the  condition,  necessarily  implied,  that  they  must  be  consistent 
with  the  statutes  which  have  been  enacted  by  Congress,  and  must 
be  in  execution  of,  and  supplementary  to,  but  not  in  conflict  with, 
the  statutes.    United  States  v.  Symonds,  120  U.  S.  R.  49. 

We  cannot  give  a  construction  to  those  regulations  which  would 
lengthen  the  term  of  office  limited  by  the  Constitution,  by  section 
1769  of  the  Revised  Statutes,  and  by  the  commission;  nor  a  con- 
struction which  would  give  to  one  whose  commission  had  expired 


DOLAN  V.  MAYOR.  171 

by  such  limitation  the  salary  or  emoluments  of  an  office  declared  to 
be  in  abeyance,  without  any  salary,  fees  or  emoluments  attached 
thereto,  and  the  duties  of  which  are  to  be  performed  by  some  other 
person,  as  provided  in  said  section  1769. 

Further,  it  is  not  to  be  assumed  that  the  President  by  these  regu- 
lations intended  to  direct  the  payment  of  the  money  from  the 
Treasury  in  clear  violation  of  the Revised  Stat- 
utes  

A  more  sensible  construction  may  be  given  those  regulations, 
bringing  them  within  the  undoubted  power  of  the  President  to 
make.  It  is  that  they  apply  only  to  those  Indian  agents  whose 
term  of  office  does  not  expire  by  statute  until  the  qualification  of 
their  successors.  Practically  they  fix  the  date  of  qualification  as 
the  day  on  which  the  new  appointee  takes  the  last  step  necessary 
to  put  himself  in  possession  of  the  means  to  perform  the  duties  of 
the  office.  That  done,  the  statute,  not  the  regulation,  determines 
to  whom  the  salary  belongs.  Thus  construed  the  regulations  are 
reasonable  and  valid. 

It  may  be  a  hardship  to  the  claimant  to  deny  him  pay  for  the 
time  he  performed  duties  after  the  expiration  of  his  term  of  office, 
and,  if  so,  his  remedy  is  in  Congress,  as  suggested  by  the  Commis- 
sioner of  Indian  Affairs  to  the  Secretary  of  the  Interior,  set  out  in 
finding  VI. 

The  petition  must  be  dismissed. 


DOLAN  V.  MAYOR,  &C. 

Court  of  Appeals  of  New  York.    January,  1877. 
68  N.  Y.  274. 

Andrews,  J.  The  plaintiff  on  the  24th  of  May,  1872,  was  duly 
appointed  assistant  clerk  of  the  District  Court  for  the  sixth  ju- 
dicial district  in  the  city  of  New  York,  by  the  justice  of  that  dis- 
trict, pursuant  to  the  provisions  of  chapter  438  of  the  laws  of  1872. 

He  thereupon  duly  qualified  and  took  possession  of  the  office, 
and  held  it  until  the  first  of  January,  1873,  on  which  day  one 
Keating,  claiming  the  office  by  virtue  of  an  appointment  made  by 
the  justice  on  the  31st  of  December,  1872,  entered  upon  and  con- 


172  DE  FACTO  OFFICERS. 

tinued  to  occupy  the  oflSce  until  March  1,  1874,  and  excluded  the 
plaintiff  therefrom.  On  that  day  the  plaintiff  again  came  into 
possession  of  the  office  by  virtue  of  a  judgment  of  ouster  obtained 
by  him  against  Keating  in  an  action  of  quo  warranto. 

By  the  act  of  1872  the  saJary  of  assistant  clerk  was  fixed  at 
$3,000  a  year,  and  the  comptroller  of  the  city  of  New  York  was 
directed  to  pay  it  in  monthly  installments  out  of  the  city  treasury. 
The  salary  was  paid  to  Keating  from  the  first  of  January,  1873, 
to  the  first  of  December,  1873.  The  salary  for  December,  1873,  and 
January,  1874,  has  not  been  paid  to  any  person.  The  plaintiff 
during  the  time  he  was  excluded  from  the  office,  was  ready  to  per- 
form the  duties,  and  proffered  his  services  to  the  clerk,  which  were 
refused. 

This  action  was  brought,  after  the  judgment  in  the  quo  warranto 
was  rendered,  to  recover  the  salary  of  the  office  from  January  1, 
1873,  to  March  1,  1874.  The  court,  on  the  trial,  held  that  the 
plaintiff  was  not  entitled  to  recover  the  salary  prior  to  December 
1,  1873,  but  that  he  was  entitled  to  the  salary  from  that  time,  and 
directed  a  verdict  for  the  plaintiff  for  the  amount  of  the  salary 
for  the  three  months  preceding  March  1,  1874.  Both  parties  ap- 
pealed to  the  General  Term  from  the  judgment  entered  upon  the 
verdict.  The  General  Term  affirmed  the  judgment,  and  from  the 
judgment  of  affirmance  both  parties  have  appealed  to  this  court. 

The  question  is,  was  the  plaintiff  entitled  to  recover  the  salary 
appurtenant  to  the  office  of  assistant  clerk,  during  the  whole  or 
any  part  of  the  term  in  which  he  was  excluded  from  the  possession 
of  the  office  by  Keating,  acting  under  the  illegal  appointment  of 
December  31,  1872. 

That  the  plaintiff  was  the  de  jure  officer,  and  that  Keating 
usurped  and  unlawfully  excluded  the  plaintiff  from  the  office  is 
no  longer  an  open  question. 

It  is  the  settled  doctrine  in  this  State,  that  the 

right  to  the  salary  and  emoluments  of  a  public  office,  attach  to  the 
true  and  not  to  the  mere  colorable  title,  and  in  an  action  brought 
by  a  person  claiming  to  be  a  public  officer  for  the  fees  and  compen- 
sation given  by  law,  his  title  to  the  office  is  in  issue,  and  if  that  is 
defective  ard  another  has  the  real  right,  although  not  in  posses- 
sion, the  plaintiff  cannot  recover.  Actual  incumbency  merely 
gives  no  right  to  the  salary  or  compensation. 


DOLAN  V.  MAYOR.  173 

But  it  does  not  follow  from  the  conclusion  that  thie  defendant 
could  have  successfully  defended  an  action  brought  by  Keating  to 
recover  the  salary  of  assistant  clerk,  that  it  was  not  justified  in 
not  treating  him  as  an  officer  de  jure  when  claiming  it,  and  paying 
it  upon  that  assumption.  It  is  clear  that  if  the  city  could  right- 
fully pay  the  salary  to  Keating  during  the  actual  incumbency,  and 
has  paid  it,  it  cannot  be  required  to  pay  it  again  to  the  plaintiff. 
We  are  of  opinion  that  payment  to  a  de  facto  public  officer  of  the 
salary  of  the  office,  made  while  he  is  in  possession,  is  a  good  de- 
fence to  an  action  brought  by  a  de  jure  officer  to  recover  the  same 
salary  after  he  has  acquired  or  regained  possession. 

It  is  plain  that  in  many  cases  the  duty  imposed  upon  the  fiscal 
officers  of  the  State,  counties  or  cities  to  pay  official  salaries,  could 
not  be  safely  performed  unless  they  are  justified  in  acting  upon  the 
apparent  title  of  claimants.  The  certificate  of  boards  of  can- 
vassers certifying  the  election  of  a  person  to  an  elective  office,  is 
prima  facie  evidence  of  the  title  of  the  person  whose  election  is 
certified.  But  it  often  happens  that  by  reason  of  irregularities  in 
conducting  the  election,  or  the  admission  of  disqualified  voters,  the 
apparent  title  is  overthrown  and  another  person  is  adjudged  to  be 
rightfully  entitled  to  the  office.  But  this  can  seldom,  if  ever,  be 
ascertained,  except  after  a  judicial  inquiry;  and  in  case  of  an  ap- 
pointed officer,  the  validity  of  the  appointment  often  depends  upon 
complicated  questions  of  law  or  fact.  If  fiscal  officers,  upon  whom 
the  duty  is  imposed  to  pay  official  salaries,  are  only  justified  in 
paying  them  to  the  officer  de  jure,  they  must  act  at  the  peril  of 
being  held  accountable  in  case  it  turns  out  that  the  de  facto  officer 
has  not  the  true  title ;  or,  if  they  are  not  made  responsible,  the  de- 
partment of  the  government  they  represent  is  exposed  to  the  danger 
of  being  compelled  to  pay  a  salary  a  second  time.  It  would  be  un- 
reasonable, we  think,  to  require  them,  before  making  payment,  to 
go  behind  the  commission  and  investigate  and  ascertain  the  real 
right  and  title.  This,  in  many  cases,  as  we  have  said,  would  be 
impracticable.  Disbursing  officers,  charged  with  the  payment  of 
salaries,  have,  we  think,  a  right  to  rely  upon  the  apparent  title, 
and  treat  the  officer  who  is  clothed  with  it  as  the  officer  de  jure, 
without  inquiring  whether  another  has  the  better  right. 

Public  policy  accords  with  this  view.  Public  officers  are  created 
in  the  interest  and  for  the  benefit  of  the  public ;  such,  at  least,  is 
the  theory  upon  which  statutes  creating  them  are  enacted  and 
justified.    Public  and  individual  rights  are,  to  a  great  extent,  pro- 


174  DE  FACTO  OFFICERS. 

tected  and  enforced  through  official  agencies,  and  the  State  and 
individual  citizens  are  interested  in  having  official  functions  regu- 
larly and  continuously  discharged.  The  services  of  persons  clothed 
with  an  official  character  are  constantly  needed.  They  are  called 
upon  to  execute  the  process  of  the  courts,  and  to  perform  a  great 
variety  of  acts  affecting  the  public  and  individuals.  It  is  im- 
portant that  the  public  offices  should  be  filled,  and  that  at  all  times 
persons  may  be  found  ready  and  competent  to  exercise  official 
powers  and  duties.  If,  on  a  controversy  arising  as  to  the  right 
of  an  officer  in  possession,  and  upon  notice  that  another  claims  the 
office,  the  public  authorities  could  not  pay  the  salary  and  compen- 
sation of  the  office  to  the  de  facto  officer,  except  at  the  peril  of  pay- 
ing it  a  second  time,  if  the  title  of  the  contestant  should  subse- 
quently be  established,  it  is  easy  to  see  that  the  public  service 
would  be  greatly  embarrassed  and  its  efficiency  impaired.  Dis- 
bursing officers  would  not  pay  the  salary  until  the  contest  was  de- 
termined, and  this,  in  many  cases,  would  interfere  with  the  dis- 
charge of  official  functions. 

It  is  well-settled  that  the  acts  of  an  officer  de  facto  are  valid  so 
far  as  they  concern  the  public  or  the  rights  of  third  persons  who 
are  interested  in  the  things  done. 

It  remains  to  consider  whether  the  plaintiff  is  entitled  to  recover 
the  salary  for  the  three  months  prior  to  March  1,  1874,  during 
which  the  services  were  rendered  by  Keating,  and  for  which  no 
salary  has  been  paid.  The  city  has  had  the  benefit  of  the  services 
of  assistant  clerk  during  the  time,  rendered,  it  is  true,  by  the  de 
facto  and  not  by  the  de  jure  officer.  The  plaintiff  has  regained 
possession  of  the  office  under  a  title  which  accrued  prior  to  the  time 
the  services  were  rendered. 

There  is  no  apparent  equity  in  permitting  the  city  to  escape  from 
the  payment  of  the  unpaid  salarj',  when  claimed  by  the  de  jure 
officer.  We  think  it  may  consistently  be  held  that  the  defendant 
may  treat  the  services  as  having  been  rendered  by  Keating  for 
him,  and  that  he  may  recover  the  unpaid  salary  upon  that  assump- 
tion. This  does  not  interfere  with  the  decision  of  this  court  in 
Smith  V.  The  Mayor,  37  N.  Y.  518. 

The  doctrine  which  we  have  been  called  upon  to  declare  in  de- 
termining this  controversy  is  both  reasonable  and  safe.  It  is  desir- 
able that  official  duties  should  be  performed  by  officers  legally 
elected  or  appointed.  But  the  rules  which  allow  the  title  of  the 
officer  to  be  questioned  in  an  action  for  the  salary,  and  which  sub- 


NICHOLS  V.  MACLEAN.  175 

jects  the  de  facto  olBficer  to  liability  for  damages  to  the  officer  de 
jure,  is  a  sufficient  discouragement  to  attempt  to  take  possession  of 
an  office  by  force  or  fraud,  in  the  exclusion  of  the  rightful  claimant. 

The  judgment  should  be  affirmed. 

All  concur,  except  Rapallo,  J.,  not  voting. 

Judgment  affirmed. 


NICHOLS  V.  MACLEAN. 

Court  of  Appeals  of  New  York.    March,  1886. 
101  N.  Y.  526. 

Andrews,  J.  The  facts,  upon  which  this  controversy  depends, 
are  few  and  substantially  undisputed.  The  plaintiff  was  duly  ap- 
pointed police  commissioner  of  the  city  of  New  York,  for  a  term 
of  six  years,  from  May  1,  1876,  and  duly  qualified  and  entered 
upon  and  discharged  the  duties  of  the  office  until  April  18,  1879. 
On  that  day  the  mayor  of  the  city  appointed  the  defendant,  Mac- 
Lean,  police  commissioner  for  the  unexpired  term  of  the  plaintiff 
Nichols,  the  certificate  of  appointment  reciting  that  the  appoint- 
ment was  made  by  the  mayor  in  pursuance  of  chapter  300  of  the 
Laws  of  1874,  in  place  of  Sydney  P.  Nichols,  removed.  Prior  to 
the  appointment  of  the  defendant  MacLean,  the  mayor  had  pre- 
ferred charges  against  Nichols  of  official  delinquency,  upon  which 
such  proceedings  were  had  that  on  the  5th  day  of  April,  1879,  the 
mayor  made  a  certificate  in  writing  removing  the  plaintiff  from  his 
office  of  police  commissioner,  which  certificate  with  the  reasons 
therefor  he  transmitted  to  the  Governor,  who  on  the  17th  day  of 
April,  1879,  approved  in  writing  of  such  removal.  The  plaintiff, 
in  June,  1879,  applied  for  a  writ  of  certiorari,  to  review  the  pro- 
ceedings removing  him,  which  was  issued  August  12,  1879,  ad- 
dressed to  the  mayor,  who  made  return  thereto,  and  on  February 
11,  1880,  judgment  was  rendered  in  the  proceeding  declaring  that 
the  proceedings  of  the  mayor  for  the  removal  of  Nichols  and  his 
judgment  of  removal  "be  and  are  hereby  reversed,  and  in  all 

things  held  for  naught." The  defendant,  MacLean, 

on  the  18th  day  of  April,  1879,  on  presenting  his  certificate  of 
appointment  was  duly  recognized  by  the  board  of  police  commis- 
sioners as  commissioner  in  place  of  Nichols,  and  thereupon  assumed 


176  DE  FACTO  OFFICERS. 

the  duties  of  the  oflBce  and  continued  to  act  as  police  commissioner 
until  February  7,  1880,  on  which  day  the  decision  of  the  court  in 
the  certiorari  proceeding  having  been  called  to  the  attention  of  the 
board,  Nichols  was  oflScially  recognized  as  commissioner,  and  on 
that  day  resumed,  and  thereafter  continued  to  discharge  the  duties 
of  the  office.  During  the  period  between  the  17th  of  April,  1880, 
the  defendant  drew  and  received  from  the  city  of  New  York  $4,700 
salary  for  that  time  of  the  office  of  police  commissioner.  It  is 
found  that  the  plaintiff  during  the  time  he  was  excluded  from  the 
office  was  ready  and  willing  to  perform  the  duties  thereof,  and  it 
was  proved  that  the  plaintiff  on  the  18th  day  of  April,  1879,  upon 
presentation  by  the  defendant  of  his  certificate  of  appointment 
protested  to  the  defendant  that  his  removal  was  unauthorized  and 
that  there  was  no  vacancy  to  be  filled  by  the  mayor.  This  action 
is  brought  to  recover  the  salary  received  by  the  defendant  during 
the  time  he  served  as  police  commissioner  under  the  appointment 
of  the  mayor,  and  the  sole  question  is  whether,  upon  the  facts  found, 
the  action  lies. 

The  plaintiff,  by  his  appointment,  acquired  the 

right  to  hold  the  office  of  police  commissioner  for  six  years,  and 
to  receive  the  salary  subject  to  removal  upon  a  hearing,  for  cause, 
which  right,  although  not  technically  property,  was  valuable  and 
is  under  the  protection  of  the  law.  From  a  very  early  period  of 
the  law,  the  invasion  of  a  right  to  hold  and  exercise  the  duties  of 
a  public  office  has  been  recognized  as  a  legal  wrong  for  which  the 

law  affords  a  remedy That  the  action  of  the  mayor 

in  removing  the  plaintiff  was  wrongful,  was  adjudicated  in  the 
certiorari  proceedings,  and  from  the  judgment  therein  no  appeal 

was  taken Whether  the  judgment  ipso  facto  worked 

a  reinstatement  of  the  plaintiff,  we  need  not  now  consider.  The 
defendant  voluntarily  surrendered  the  office  to  the  plaintiff,  or  at 
least  he  acquiesced  in  his  resuming  possession. 

But  it  is  insisted  that,  conceding  the  unlawful  ex- 
pulsion, and  the  intrusion  by  the  defendant,  it  is  not  res  judicata  in 
this  State  that  an  action  can  be  maintained  by  the  party  dispos- 
sessed, against  the  intruder,  to  recover  the  emoluments  of  the  office 
received  by  him.  In  the  case  of  Dolan  v.  Mayor,  etc.  (68  N.  Y. 
274),  it  was  assumed  that  such  an  action  could  be  maintained,  and 
authorities  were  cited  to  maintain  the  proposition.  The  determina- 
tion of  this  question  was  not,  perhaps,  essential  to  sustain  the 


NICHOLS  V.  MACLEAN.  177 

judgment  in  that  ease.  But  we  think  the  doctrine  is  well  founded 
in  reason  and  authority.  The  plaintiff  being  the  officer  de  jure, 
was  entitled  to  earn  the  salary.  It  is  true  that  he  did  not  render 
the  service  for  which  the  salary  is  the  compensation.  But  he  was 
ready  and  willing  to  render  it,  and  was  prevented  by  the  conjoint 
acts  of  the  mayor  and  the  defendant.  The  case  of  McVeany  v.  The 
Mayor  (80  N.  Y.  185),  shows  that  the  right  to  a  salary  of  an  office 
is  not  necessarily  dependent  upon  the  actual  rendition  of  service 
by  the  claimant.  In  that  case  the  plaintiff  was  allowed  to  recover 
from  the  city,  salary  from  the  time  judgment  of  ouster  against 
the  incumbent  was  pronounced,  although  the  plaintiff  rendered  no 
personal  service  and  the  salary  had  been  paid  to  the  intruder.  In 
the  Dolan  Case  (supra),  the  claimant  recovered  the  salary  unpaid 
during  the  time  Keating  discharged  the  duties  of  the  office.     .     .     . 

The  exclusion  of  a  de  jure  officer  from  his  office  is 

a  legal  wrong  committed  by  the  intruder.  In  a  legal  view  it  is 
immaterial  that  the  defendant  may  have  acted  in  good  faith,  or 
that  he  supposed  he  had  the  better  title.  A  good  motive  is  not  an 
adequate  answer  to  a  claim  for  indemnity  for  a  violated  right. 
There  is  a  great  preponderance  of  authority  in  support  of  the  doc- 
trine that  the  de  jure  officer  can  recover  against  the  intruder,  the 
damages  resulting  from  the  intrusion,  and  that  as  a  general  rule, 
the  salary  annexed  to  the  office  and  received  by  the  defendant 
measures  the  loss.  Dolan  v.  Mayor,  etc.,  supra.;  Lawlor  v.  Alton, 
L,  R.  8  Ir.  160;  Glascock  v.  Lyons,  20  Ind.  1;  Douglass  v.  State, 
31  Id.  429;  People  \.  Miller,  24  Mich.  458;  Dorsey  v.  Smith,  28 
Cal.  21 ;  Segan  v.  Crenshaw,  10  La.  Ann.  239 ;  U.  S.  v.  Addison,  6 
Wall.  291.  But  as  a  final  point  the  defendant  invokes  for  his 
protection,  the  doctrine  which  protects  rights  acquired  on  the  faith 
of  a  judgment,  notwithstanding  its  subsequent  reversal.  "We  think 
the  doctrine  is  inapplicable  to  the  case.  The  appointment  of  the 
mayor  and  the  defendant's  assumption  of  office  thereunder,  made 
him  an  officer  de  facto  merely.  *'An  officer  de  facto,'*  says  Chan- 
cellor Walworth,  "is  one  who  comes  into  a  legal  and  constitutional 
office,  by  color  of  a  legal  appointment  or  election  to  that  office.'* 
People  v.  White,  24  Wend.  518,  539.  The  proceeding  of  the  mayor 
in  removing  Nichols,  was  so  far  judicial  as  to  authorize  it  to  be 
reviewed  on  certiorari.  It  was  not  a  proceeding  in  a  court  of  jus- 
tice under  the  forms  and  solemnities  of  judicial  proceedings  in 
courts,  to  establish  the  rights  of  litigants.  The  defendant  did  not 
acquire  his  title  to  the  office  under  the  so-called  judgment  rendered 

by  the  mayor,  but  under  a  separate  and  distinct  proceeding  sub- 
12 


178  DE  FACTO  OFFICEBS. 

sequent  thereto,  by  which  the  defendant  became  invested  with  the 
character  of  an  officer  de  facto.  It  is  abundantly  settled  by  au- 
thority that  an  officer  de  facto  can  as  a  general  rule  assert  no  right 
of  property,  and  that  his  acts  are  void  as  to  himself  unless  he  is 
also  an  officer  de  jure.  Green  v.  Burke,  23  Wend.  490 ;  People  v. 
Nostrand,  46  N.  Y.  375 ;  Bronson,  J.,  in  People  v.  Hopson,  supra. 

In  the  Dolan  Case  (supra),  the  appointment  of  Keating  was 
made  under  an  ambiguous  statute,  under  a  claim  of  right,  and  was 
regular  in  form,  but  the  court  were  of  opinion  that  this  would  not 
protect  him  against  a  suit  by  the  officer  de  jure  to  recover  the  salary 
received  by  him.  We  think  there  is  no  solid  distinction  between 
the  cases.  The  defendant  took  the  risk  of  the  validity  of  his  title, 
and  the  loss  should  fall  upon  him  rather  than  upon  the  plaintiff. 

Upon  the  whole  case  we  are  of  opinion  that  the  judgment  should 
be  affirmed. 

All  concur,  except  Bapallo  and  MilIjEB,  JJ.,  not  voting. 

Judgment  affirmed. 

But  see  Strahr  v.  Curran,  15  Vroom.  N.  J.  L.  181.  A  de  facto  ofBcer  may 
be  compelled  to  perform  the  duties  of  the  office  which  he  has  assumed. 
State  ▼.  Supervisors,  21  Wis.  282.  supra. 


THE  STATE  V.  DIERBERGER. 

Supreme  Court  of  Missouri.    October,  1886. 
90  Missouri  Reports  369. 

Black,  J.  The  defendant  was  tried  in  the  St.  Louis  Criminal 
Court  on  an  indictment  for  murder  in  the  first  degree  and  was 
convicted  of  murder  in  the  second  degree. 

The  evidence  shows  that  Dierberger,  the  defendant,  his  wife  and 
sister,  got  into  a  street  car  in  St.  Louis.  The  deceased,  John  Home, 
his  wife,  and  Joseph  Jackson,  got  on  the  same  car.  It  was  about 
twelve  o'clock  at  night  and  the  parties  were  going  to  their  re- 
spective homes.  The  car  was  well  filled  with  passengers,  and  Home 
and  Jackson,  who,  the  evidence  tends  to  show,  were  somewhat  under 
the  influence  of  intoxicants,  went  to  the  front  platform  and  eventu- 
ally got  into  a  dispute  with  the  driver,  which  resulted  in  the  use 
of  boisterous  language,  and  a  scuffle  between  the  driver  and  Jack- 


THE  STATE  V.  DIERBERGEB.  179 

son.  The  conductor,  followed  by  the  defendant,  went  from  the  rear 
to  the  front  of  the  car,  and  when  the  door  was  opened,  the  driver, 
Jackson,  and  perhaps  Home,  fell  into  the  aisle  of  the  car.  There 
is  evidence  that  the  defendant  went  to  the  front  platform  first  to 
stop  the  car,  which  by  this  time  was  going  at  a  rapid  rate  of  speed. 
At  all  events,  immediately,  and  while  the  parties  were  all  in  the 
car,  defendant  stepped  up  to  Jackson  and  said  he  was  an  officer 
and  would  arrest  him,  and  at  the  same  time  took  hold  of  Jackson, 
who  said,  "If  you  are  an  officer,  I  will  go  with  you."  Home  then 
said,  ** Don't  go,  Jackson,  he  is  no  officer."  There  is  also  evidence 
that  Home  said,  "I  don't  give  a  damn  what  you  are  you  can't 
take  him."  Other  words  passed  between  Home  and  the  defendant, 
when  the  latter  drew  a  pistol,  but  at  the  request  of  the  conductor, 
put  it  away.  It  is  said  that  in  less  than  a  half  a  minute  defendant 
pressed  Home  to  the  front  of  the  car  and  fired  two  shots,  one  of 
which  killed  Home.  Again,  there  is  evidence  that  Jackson  hit 
defendant  when  Home  came  to  Jackson's  aid  and  a  fight  or 
scuffle  ensued  in  which  defendant  received  bruises  and  cuts  about 
the  face  and  in  which  Home  was  killed  by  one  of  two  shots  fired 
by  defendant. 

The  defendant  put  in  evidence  a  written  and  formal  appoint- 
ment as  deputy  constable  dated  April  21,  1883,  and  signed  by 
John  F.  C.  Frese,  constable  of  the  thirteenth  district.  It  is  con- 
ceded this  appointment  was  not  filed  with  the  city  register,  who 
performs  the  duties  of  a  county  clerk,  and  that  defendant  had 
taken  no  official  oath.  .  .  .  The  court,  among  other  instruc- 
tions, told  the  jury  in  substance  that,  under  the  evidence,  defend- 
ant was  not  a  deputy  constable  under  the  laws  of  this  state; 
and  that  a  private  person  who  assumes  to  act  as  an  officer  of  the 
law,  does  so  at  his  peril,  and  although  the  jury  might  believe 
that  the  defendant  in  good  faith  believed  he  was  a  deputy  con- 
stable, yet  such  belief  did  not  authorize  him  to  act  as  such  dep- 
uty, nor  shield  him  from  unlawful  acts. 

The  statute,  section  652,  gives  every  constable  power  to  ap- 
point deputies,  for  whose  conduct  he  shall  be  answerable,  and 
provides  that  the  appointment  shall  be  filed  in  the  office  of  the 
county  clerk.  .  .  .  The  failure  to  file  the  appointment  can- 
not deprive  the  defendant  of  his  right  to  say  that  he  was  a 
deputy  constable. 

The  more  difficult  question  arises  from  the  failure  of  the  de- 
fendant to  take  an  oath  of  office.  .  .  .  Section  6,  article  14, 
of  the  constitution  requires  all  officers  under  the  authority  of  the 


180  DE  FACTO  OFFICERS. 

state,  before  entering  upon  the  discharge  of  the  duties  of  their 
respective  offices,  to  take  and  subscribe  an  oath  or  affirmation 
to  support  the  constitution  and  to  faithfully  demean  themselves 
in  office.  Clearly  the  deputy  constable  is  an  officer  under  the 
authority  of  the  state.  He  should  take  the  oath,  and  until  he 
does  so,  he  is  not  an  officer  de  jure;  and  the  further  question  is, 
was  he  an  officer  de  facto. 

The  act  of  the  defendant  here  in  question  was  probably  his 
first  act  as  deputy,  but  we  do  not  see  how  that  can  make  any 
difference,  for  the  constable  had  the  undoubted  right  to  make 
the  appointment,  and  the  appointment  was  in  every  way  a  good, 
formal  and  valid  appointment.  The  appointment  made  and  con- 
stituted him  a  deputy;  and  though  he  failed  to  take  the  oath  he 
was  an  officer  de  facto.  The  principle  of  law  is  well  settled  that 
the  acts  of  such  an  officer  are  as  effectual  when  they  concern 
the  public,  or  the  rights  of  third  persons,  as  though  they  were 
officers  de  jure.  21  Am.  Dee.  213;  19  Am.  Dec.  63,  and  notes; 
50  Mo.  593;  72  Mo.  189. 

Generally,  where  an  officer  sues  or  defends  in  his  own  right, 
as  a  public  officer,  it  is  not  sufficient  that  he  be  merely  an  of- 
ficer de  facto,  but  to  do  this  he  must  be  an  officer  de  jure.  Peo- 
ple V.  Weber,  89  111.  348;  Patterson  v.  Miller,  2  Met.  (Ky.)  493; 
Turner  et  al.  v.  Keller  et  al.,  38  Mo.  332.  It  has  been  said  as 
to  an  officer  de  facto,  that  the  office  is  void  as  to  the  officer  him- 
self, though  valid  as  to  strangers. 

In  People  v.  Hopson  et  al.,  1  Denio  575,  where  the  defendants 
were  indicted  for  resisting  a  constable  in  the  execution  of  proc- 
ess which  ran  in  favor  of  Avery  and  against  said  Hopson,  the 
defendants  offered  to  prove  that  the  constable  had  never  taken 
the  oath  of  office,  nor  given  security  required  by  law;  and  so  was 
not  a  constable.  As  to  this  offer  the  court  said:  "The  evi- 
dence would  be  proper  if  Lascells  (the  constable),  instead  of  the 
people,  was  the  party  complaining  of  an  injury.  If  he  were 
suing  to  recover  damages  for  the  assault,  it  would  probably  be 
a  good  answer  to  the  action  that  he  was  not  a  legal  officer,  but 
a  wrongdoer,  who  might  be  resisted.  And  clearly  he  cannot 
recover  fees,  or  set  up  any  right  of  property  on  the  ground  that 
he  is  an  officer  de  facto,  unless  he  is  an  officer  de  jure.  .  .  . 
But  it  is  equally  well  settled  that  the  acts  of  an  officer  de  facto, 
though  his  title  may  be  bad,  are  valid  so  far  as  they  concern  the 
public,  or  rights  of  third  persons  who  have  an  interest  in  the 


THE  STATE  V.  DIERBERGER.  181 

things  done.  Society  could  hardly  exist  without  such  a  rule. 
.  .  .  .  The  people  are  prosecuting  for  a  breach  of  the  pub- 
lic peace;  and  it  is  enough  that  Lascells  was  an  officer  de  facto, 
having  color  of  lawful  authority.  The  rights  of  the  creditor,  the 
due  administration  of  justice,  and  the  good  order  of  society,  all 
concur  in  requiring  that  he  should  be  respected  as  an  officer 
until  his  title  has  been  set  aside  by  due  process  of  law."  See 
also,  to  the  same  effect.  Heath  v.  State,  36  Ala.  273.  Bishop 
says  the  better  opinion  is  that  third  persons  may  be  indicted 
for  resisting  a  de  facto  officer.  1  Bish.  on  Crim.  Law  (8  ed.), 
sec.  464.  Wharton,  in  making  reference  to  this  current  of  au- 
thority, says  the  rule  ought  not  to  be  extended  to  cases  where 
the  object  is  to  test  the  right  of  the  party  resisted  to  hold  office. 
Whar,  on  Crim.  Law   (8  ed.),  sec.  648. 

The  authorities  show  that  Home,  and  indeed,  Jackson,  had  no 
right  to  resist  defendant,  when  in  the  performance  of  the  legiti- 
mate duties  of  a  constable,  and  would  be  liable  for  an  indict- 
ment for  so  doing.  This  being  so,  it  is  difficult  to  see  why  the 
defendant  may  not  say  that  he  was  an  officer  de  facto,  and  be 
entitled  to  protection  to  the  extent  that  others  were  bound  to 
respect  his  official  character.  It  can  hardly  be  said  that  the 
state  resorts  to  this  proceeding  to  test  the  right  of  the  defend- 
ant to  perform  the  functions  of  a  deputy  constable,  when  there 
are  so  many  other  more  appropriate  proceedings  at  hand;  but  it 
may  rather  be  said  the  state  here  seeks  to  punish  him  for  doing 
that  which  he  had  no  right  to  do,  though  an  officer  he  was.  The 
question  is  by  no  means  free  from  doubt,  but  we  conclude  the  de- 
fendant should  be  treated  in  this  case  as  an  officer,  and  the  in- 
structions should  proceed  upon  the  theory  that  he  was  one.  There 
seems  to  be  no  doubt  but  the  defendant  believed  he  was  a  deputy 
constable  by  right,  in  all  respects,  and  the  conclusion  we  reached 
we  believe  to  be  in  the  interest  of  good  order. 

The  judgment  is  reversed,  and  the  cause  remanded  for  trial 
de  novo.    All  concur. 

One  who  resists  a  de  facto  officer  in  the  discharge  of  the  duties  of  the 
oflSce  may  be  punished  for  unlawful  resistance  to  an  officer.  Bohannan 
V.  State,  89  Ga.  451. 


182  DE  FACTO  OFFICERS. 

BOONE  COUNTY  V.  JONES  ET  AL. 

Supreme  Court  of  Iowa.    December,  1880. 
54  Iowa  Reports,  699. 

At  the  general  election  in  the  year  1873,  the  defendant  Qeo. 
E.  Jones  was  elected  county  treasurer  of  Boone  county,  for  two 
years  from  January,  1874.  He  served  the  full  term  of  the  office 
to  which  he  was  elected.  At  the  general  election  in  1875,  one 
J.  W.  Snell  was  elected  to  said  office,  for  the  term  commencing 
in  January,  1876.  After  the  said  election,  and  before  the  first 
Monday  in  January,  1876,  the  said  Snell  departed  this  life  with- 
out having  qualified,  or  in  any  manner  entered  upon  the  duties 
of  said  office.  A  vacancy  was  thereby  created  and  on  the  3d 
day  of  January,  1876,  the  defendant  Jones  executed  a  bond  to 
said  county  as  a  holding  over  officer,  and  otherwise  qualified  and 
continued  as  the  incumbent  of  said  office,  until  the  expiration  of 
the  term  in  January,  1878.  At  the  general  election  in  1876  the 
electors  of  said  county  again  voted  and  balloted  for  candidates  to 
fill  the  vacancy  in  said  office,  for  the  residue  of  the  said  term  to 
which  said  Snell  had  been  elected,  and  the  said  Geo.  E.  Jones 
was  again  declared  duly  elected,  and  thereafter,  and  on  the  17th 
day  of  November,  1876,  the  said  Jones,  and  the  other  defendants 
as  his  sureties,  executed  a  treasurer's  bond  to  said  county. 

This  action  was  brought  upon  this  bond,  and  it  was  claimed 
that  upon  his  final  settlement  with  the  county  in  January,  1878, 
the  said  Jones  proved  to  be  a  defaulter  in  a  large  amount  of 
money,  for  which  judgment  was  prayed  against  him  and  the 
other  defendants  as  his  sureties. 

The  answers  of  the  defendants  in  substance  denied  .... 
the  validity  of  said  election  and  bond  ....  and  denied 
that  Jones  ever  held  the  office  under  said  pretended  election,  and 
averred  that  he  held  the  full  term  for  which  said  Snell  was 
elected  as  a  holding  over  officer,  and  said  Jones  averred  that 
there  were  two  other  actions  pending  against  him  for  the  same 
cause  of  action  embraced  in  this  suit. 

There  was  a  trial  by  jury,  and  a  verdict  and  judgment  for 
the  plaintiff  for  $13,598.    Defendants  appeal. 

RoTHROCK,  J.    I When   the  bond  was  offered   in 

evidence,  objection  was  made  thereto  upon  the  grounds  that  it 


BOONE  COUNTY  V.  JONES  ET  AL.  183 

was  not  a  valid  instrument,  because  the  election  therein  recited 
was  void,  not  being  authorized  by  law,  and  because  there  was  no 

vacancy  at  that  time  existing These  objections  were 

overruled.  The  same  questions  were  presented  in  certain  in- 
structions which  the  defendants  asked  to  be  given  to  the  jury, 
and  the  instructions  were  refused. 

We  think  it  is  not  material  to  inquire  whether  the  defendant 
Jones  was  entitled  to  hold  over  for  the  full  term  for  which  Snell 
was  elected,  nor  to  determine  whether  his  election  to  fill  a  va- 
cancy was  regular,  and  authorized  by  law.  We  are  united  in 
the  opinion  that  Jones  and  his  sureties  are  concluded  by  the 
recitals  in  this  bond,  and  cannot  be  heard  to  dispute  the  reg- 
ularity of  the  election.  Under  the  recitals  of  this  bond  he  was, 
as  between  the  parties  thereto,  de  facto  the  treasurer  of  the 
county.  If  public  officers  are  allowed  to  escape  the  consequences 
of  malfeasance  in  office  after  the  full  term  of  their  election  has 
expired,  because  of  an  alleged  illegal  election,  it  would  be  a 
bolder  and  more  glaring  instance  of  allowing  a  man  to  take  ad- 
vantage of  his  own  wrong  than  any  case  that  has  come  under 
our  observation. 

Afiirmed. 

The  rule  that  one  in  possession  of  an  o£9ce  may  not  Impeach  his  own 
title  prevents  an  Incumbent  in  office  from  escaping  the  consequences  of 
either  a  tortious  or  criminal  act  committed  by  him  in  the  discharge  of 
the  functions  of  the  office.  Longacre  v.  State,  3  Miss.  637;  Diggs  v.  State, 
49  Ala.  311. 


CHAPTER  IV. 

QUAUFICATIONS  FOR  OFFICE. 

I.    Power  op  Legislature  to  Provide  Qualifications. 

1.     In  General. 

BRADLEY  V.  CLARK. 

Supreme  Court  of  California.    June,  1901. 
133  California,  196. 

Hensraw,  J.  This  is  an  action  instituted  by  an  elector  of  the 
city  of  Sacramento,  under  the  provisions  of  the  Purity  of  Elec- 
tions Act  (Stats.  1893,  p.  15),  contesting^  the  right  of  the  de- 
fendant, mayor-elect  of  the  city,  to  his  offce.  After  trial,  judg- 
ment passed  for  the  defendant,  and  from  that  judgment  con- 
testant appeals,  the  evidence  being  brought  up  for  review  by 
bill  of  exceptions. 

It  is  charged  by  contestant  that,  in  violation  of  the  Purity  of 
Elections  Act,  the  defendant  was  guilty  of  certain  improper 
practices,  in  that,  1.  He  did  not  file  a  statement  of  his  election 
expenses,  supported  by  his  aflfidavit,  as  required  by  law;     .     .     . 

Respondent  contends  that  these  provisions,  or  at  least  such  of 
them  as  require  a  successful  candidate  to  support  his  statement 
by  his  oath  as  a  prerequisite  to  his  right  to  take  office,  are  vio- 
lative of  the  constitution  of  the  state,  and  therefore  void.  From 
this  conclusion  we  think  there  can  be  no  escape.  Section  3  of 
article  XX  of  our  state  constitution  declares:  "Members  of  the 
legislature,  and  all  officers,  executive  and  judicial,  'except  such 
inferior  officers  as  may  be  by  law  exempted,  shall,  before  they 
enter  upon  the  duties  of  their  respective  offices,  take  and  sub- 
scribe the  following  oath  or  affirmation:  *I  do  solemnly  swear 
(or  affirm,  as  the  case  may  be)  that  I  will  support  the  constitu- 
tion of  the  United  States  and  the  constitution  of  the  state  of 
California,  and  that  I  will  faithfully  discharge  the  duties  of  the 

office  of  according  to  the  best  of  my  ability,* 

and  no  other  oath,  declaration,  or  test  shall  be  required  as  a 

184 


BRADLEY  V.   CLARK.  185 

qualification  for  any  office  or  public  trust."  The  constitution 
itself  speaks  of  this  prescribed  oath  as  a  "qualification"  for  an 
office.  Equally  is  the  oath  required  to  be  taken  by  the  success- 
ful candidate  a  qualification  for  office,  for  the  very  provision  of 
the  act  is,  that,  for  his  refusal  or  neglect  in  this  regard,  or  for 
the  making  of  a  false  statement,  he  shall  be  deprived  of  his 
office,  and  shall  forfeit  any  office  to  which  he  may  have  been 
elected. 

Had  our  constitution  merely  declared,  as  some  do,  that  no 
other  "test"  than  the  one  prescribed  should  be  exacted  of  an 
officer  elect,  it  might  then  be  argued  with  some  force  that  it  had 
reference  to  such  tests,  in  their  nature  religious,  as  those  re- 
quired by  the  act  of  Charles  II,  directed  against  Roman  Catholics 
and  dissenters,  which  remained  a  blot  upon  the  English  statute- 
books  until  1828.  But  the  constitution  has  designedly  said,  not 
alone  that  no  other  test  should  be  required,  but  that  no  other 
"oath  or  declaration",^ should  be  exacted.  This  language  leaves 
as  the  only  matter  for  determination  the  single  question,  whether 
this  act  does  impose  an  oath  or  test  substantially  differing  from 
that  prescribed  by  the  constitution.  {Cohen  v.  Wright,  22  Cai. 
294.)  That  it  does  prescribe  a  substantially  different  oath,  in 
addition  to  that  made  exclusive  by  the  language  of  the  con- 
stitution, the  very  reading  of  the  section  makes  manifest.  But, 
in  holding  that  the  legislature  may  not  prescribe  this  additional 
oath  upon  a  successful  candidate  as  a  prerequisite  to  his  right 
to  take  office,  and  as  an  additional  qualification  to  those  enunci- 
ated by  the  constitution,  we  do  not  mean  to  be  understood  as 
saying  that  the  legislature  may  not  with  propriety  provide  that 
a  candidate  shall  forfeit  his  office  for  the  doing  of  any  of  the 
inhibited  acts,  or  for  the  failure  to  do  any  of  the  required  acts 
set  forth  in  the  Purity  of  Elections  Act.  The  legislature  would 
have  the  undoubted  power  to  require  an  officer  elect  to  file  just 
such  a  statement  as  the  law  now  prescribes,  and  to  provide  that 
for  a  failure  so  to  do  he  should  forfeit  his  office,  or  his  right  to 
office;  but,  under  the  strict  mandate  of  the  constitution,  it  has 
no  right  to  exact  this  different  and  additional  oath  or  affirma- 
tion before  the  taking  of  office,  as  a  prerequisite  thereto.  So 
much,  therefore,  of  the  act  as  requires  the  candidate  to  support 
his  statement  by  the  above-quoted  oath  as  a  prerequisite  to  the 
right  to  take  office  is  void. 


186  QUALIFICATIONS  FOB  OFFICE. 

2.    Property  and  Educational  Qmlifications. 

STATE  EX  REL.  THOMPSON  V.  McALLISTER. 

Supreme  Court  of  Appeals  of  West  Virginia.    November,  1893. 

38  W.  Va.  485. 

Dent,  J. 

•         ••••••••• 

Appellants  assign  three  grounds  of  error  in  their  petition  for 
writ  of  error,  viz.:  First,  it  was  error  in  the  Circuit  Court  to 
hold  the  statute,  which  requires  councilmen  to  be  freeholders,  un- 
constitutional ; 

In  my  opinion  there  are  only  two  questions  suggested  by  the 
facts  in  this  case  as  proper,  at  the  present  time,  for  the  consid- 
eration of  this  court:  (1)  Is  the  law  containing  the  free-hold 
requirement  constitutional?    .... 

1.  In  determining  this  constitutional  question  we  find  the  rule 
plainly  laid  down  in  the  case  of  State  v.  Dent,  25  W.  Va.  19,  in 
these  words,  to  wit:  "Article  6,  section  1,  of  our  constitution 
provides:  'The  legislative  power  shall  be  vested  in  a  senate  and 
a  house  of  delegates.*  This  obviously  confers  on  them  all  legis- 
lative power,  except  such  as  they  are  prohibited  by  the  consti- 
tution in  other  provisions  from  exercising."  And  the  person 
claiming  that  an  act  of  the  legislature  is  an  infringement  of 
the  restrictions  of  the  constitution  must  point  out  the  provision 
plainly  forbidding,  either  by  express  words  or  by  inevitable  im- 
plication, the  passage  of  such  act:  And,  if  none  such  exists, 
the  act,  however  unjust  or  unreasonable  it  may  seem,  is  valid, 
and  must  be  sustained  by  this  court.  Judge  Cooley,  as  quoted 
approvingly  in  the  above  case,  lays  down  the  rule  that  "any 
legislative  act  which  does  not  encroach  upon  the  powers  appor- 
tioned to  other  departments  of  the  government  being  prima  facie 
valid  must  be  enforced  unless  restrictions  upon  the  legislative 
authority  can  be  pointed  out  in  the  constitution  and  the  case 
shown  to  come  within  them." 

The  defendants  in  error  recognizing  the  binding  force  of  this 
rule  point  out  three  sections  of  the  constitution  all  and  each  of 
which  they  claim  are  violated  by  the  act  in  question : 

First.  Section  4  article  IV,  which  provides  that  "No  person 
except  a  citizen  entitled  to  vote  shall  be  elected  or  appointed 


STATE  EX  REL.   THOMPSON  V.   MCALLISTER.  187 

to  any  office,  state,  county  or  municipal."  Defendants  in  error 
argue  that  because  this  section  forbids  any  persons  except  qual- 
ified electors  to  hold  office,  by  just  implication,  the  converse  of 
the  proposition  is  also  included  in  the  meaning  of  the  section; 
that  is  to  say,  that  all  electors  are  duly  qualified  to  hold  office. 
Such  reasoning  is  very  fallacious.  This  provision  was  simply  in- 
tended to  limit  the  number  from  whom  the  various  officers  of  this 
state  might  be  chosen  to  those  having  a  voice  in  the  selection  of 
such  officers,  and  not  in  any  sense  intended  to  determine  the  qual- 
ifications necessary  to  properly  discharge  the  duties  of  any  office. 
For  the  electors  to  say  in  the  constitution  adopted  by  them  that 
**no  one  but  ourselves  shall  ever  be  elected  or  appointed  to  any 
office  in  this  state"  does  not,  by  implication,  say  to  the  legisla- 
ture, further,  ''You  shall  pass  no  law  that  will  prevent  any  of 
us  from  holding  office,"  for  such  an  important  matter  as  this 
would  not  be  left  to  implication,  if  the  electors  had  considered 
such  a  provision  desirable. 

While  we  have  no  decision  in  this  state  touching  this  ques- 
tion, the  highest  tribunals  of  other  states  have  construed  similar 
provisions  in  their  state  constitutions  as  above  indicated.  In  the 
case  of  Darrow  v.  People,  8  Col.  420  (8  Pac.  661)  the  supreme 
court  of  the  state,  in  passing  on  the  same  question  here  raised, 
says:  "Counsel  argue  that  section  6  art.  VII  of  the  constitution 
provides  that  *no  person  except  a  qualified  elector  shall  be 
elected  to  any  civil  or  military  office  in  the  state,'  by  implica- 
tion, prohibits  the  legislature  from  adding  the  property  qualifi- 
cation under  consideration.  There  is  nothing  in  the  constitution 
which  expressly  designates  the  qualifications  of  councilmen  in  a 
city  or  town,  and  this  section  contains  the  only  language  that 
can  possibly  be  construed  as  applicable  thereto.  But  it  will  be 
observed  that  the  language  used  is  negative  in  form:  that  it 
simply  prohibits  the  election  or  appointment  to  office  of  one  not 
a  qualified  elector.  There  is  no  conflict  between  it  and  the  stat- 
ute. By  providing  that  a  supervisor  or  an  alderman  shall  be  a 
taxpayer,  the  legislature  does  not  declare  that  he  need  not  be 

an  elector.    Nor  is  the  provision  at  all  unreasonable 

The  right  to  vote  and  the  right  to  hold  office  must  not  be  con- 
fused. Citizenship  and  the  requisite  sex,  age  and  residence,  con- 
stitute the  individual  a  legal  voter,  but  other  qualifications  are 
absolutely  essential  to  the  efficient  performance  of  the  duties 
connected  with  almost  every  office;  and  certainly  no  doubtful 
implication  should  be  favored,  for  the  purpose  of  denying  the 


188  QUALIFICATIONS  FOB  OFFICE. 

right  to  demand  such  additional  qualifications  as  the  nature  of 
the  particular  office  may  reasonably  require.  We  not  not  believe 
that  the  framers  of  the  constitution,  by  this  provision,  intended 
to  say  that  the  right  to  vote  should  be  the  sole  and  exclusive 
test  of  eligibility  to  all  civil  offices,  except  as  otherwise  provided 
in  the  instrument  itself;  that  no  additional  qualification  should 
ever  be  demanded,  and  no  other  disqualifications  should  be  im- 
posed. If,  as  has  been  well  said,  they  'had  intended  to  take 
away  from  the  legislature  the  power  to  name  disqualifications  for 
office  other  than  the  one  named  in  the  constitution,  it  would  not 
have  been  left  to  the  very  doubtful  implication  which  is  claimed 
from  the  provision  under  consideration.'  State  v.  Covington,  29 
Ohio  St.  102."  In  the  latter  decision  the  court  laid  down  the 
law  in  a  syllabus  as  follows,  to  wit:  "The  provision  in  the  con- 
stitution (section  4,  art.  15)  that  no  person  shall  be  elected  or 
appointed  to  any  office  in  this  state  unless  he  possesses  the  qual- 
ifications of  an.  elector  does  not  by  implication  forbid  the  legis- 
lature to  require  other  reasonable  qualifications  for  office.  "^ 

Second.  The  next  claim  of  the  counsel  is  that  the  latter 
clause  of  section  5,  art.  IV,  is  violated,  which  is  in  these  words: 
"And  no  other  oath,  declaration  or  test  shall  be  required  as  a 
qualification  unless  herein  otherwise  provided;"  his  argument 
being  that  the  freehold  requirement  is  a  test,  within  the  mean- 
ing of  the  constitution.  The  assertion  is  so  unfounded  as  to 
hardly  need  refutation.  This  clause  is  simply  an  application  of 
section  11,  art.  Ill,  to  the  case  of  officeholders,  which  is  in  these 
words:  "Sec.  11,  Political  tests,  requiring  persons  as  a  pre- 
requisite to  the  enjoyment  of  their  civil  and  political  rights,  to 
purge  themselves  by  their  own  oaths  of  past  alleged  offenses,  are 
repugnant  to  the  principles  of  free  government,  and  are  cruel 
and  oppressive.  No  religious  or  political  test  oath  shall  be  re- 
quired as  a  prerequisite  or  qualification  to  vote,  serve  as  a  juror, 
sue,  plead,  appeal  or  pursue  any  profession  or  employment.  Nor 
shall  any  person  be  deprived  by  law,  of  any  right,  or  privi- 
lege, because  of  any  act  done  prior  to  the  passage  of  such  law." 

As  will  be  seen  at  a  glance,  nothing  is  said  about  holding 
office,  in  this  section,  but  it  is  made  to  apply  alone  to  the  right 
"to  vote,  serve  as  a  juror,  plead,  sue,  appeal  or  pursue  any  pro- 
fession or  employment."    To  remedy  the  omission  here,  the  con- 

'This  case  held  that  the  legislature  might  provide  that  the  ability  to 
read  and  write  should  be  a  qualification  for  the  office  in  question. 


STATE  EX  REL.   THOMPSON  V.   MCALLISTER.  .  189 

stitution  makers  added  the  clauses  to  section  5,  art.  IV,  which 
refers  alone  to  political  and  religious  tests  as  a  prerequisite  or 
qualification  for  office  and  has  nothing  whatever  to  do  with  any 
just  qualification  that  the  legislature  may  deem  necessary  to  a 
proper  discharge  of  the  functions  of  the  office. 

Third.  The  last  claim  of  the  counsel  is  that  the  provision 
complained  of  is  in  violation  of  section  8,  art.  lY,  of  the  con- 
stitution, in  which  the  legislature  is  empowered  to  ''prescribe 
by  general  laws  the  terms  of  office,  powers,  duties  and  compensa- 
tion of  all  public  officers  and  agents,  and  the  manner  in  which 
they  shall  be  elected  appointed  and  removed."  This  section  in- 
cludes all  municipal  officers,  and  was  only  intended  to  require 
the  legislature  to  enact  general,  and  not  special,  laws  in  relation 
to  the  matters  included  in  the  section.  But  the  counsel  argue 
that  **by  granting  the  legislature  authority  to  establish  offices, 
and  provide  the  term  of  office,  powers,  duties,  compensation  and 
manner  of  election  and  removal,  the  power  to  add  a  qualifica- 
tion, not  being  given,  is  excluded  by  implication."  The  learned 
counsel  appear  to  forget  the  difference  so  often  defined  between 
the  federal  and  state  constitutions;  the  former  being  strictly 
a  grant  of  powers,  while  the  latter  is  a  limitation  or  restriction 
on  the  powers  of  the  state  legislature,  which  otherwise  would  be 
supreme  in  all  legislative  matters,  as  it  is  now  in  all  cases  where- 
in not  restricted  by  the  constitution — ^that  instrument  itself  so 
declaring,  as  heretofore  mentioned.  And  for  the  very  reason  that 
the  power  to  prescribe  qualifications  is  not  mentioned  in  this 
section,  the  legislature  has  unrestricted  control  of  that  power. 
And  it  has  been  held  by  the  court  of  appeals  of  another  state 
that  the  same  kind  of  provision  gave  the  legislature  entire  con- 
trol over  all  such  officers;  that  the  power  to  prescribe  the  man- 
ner in  which  they  shall  be  elected  and  appointed  included  within 
it,  necessarily,  the  power  to  prescribe  civil  service  examinations, 
or  to  prescribe  that  they  should  be  chosen  from  a  class  of  citi- 
zens who  possess  some  qualifications  that  specially  fit  them  for 
office  or  render  them  efficient  officers. 

The  judgment  of  the  Circuit  Court  is  reversed,  the  mandamus 
nisi  is  quashed,  and  these  proceedings  are  dismissed,  at  the  cost 
of  the  relators. 

For  educational  qualifications  see  Rogers  v.  Common  Council,  123  N. 
Y.  173,  infra.     But  the  legislature  may  not,  where  a  power  of  appoint- 


190  QUALIFICATIONS  FOR  OFPld. 

ment  is  vested  In  an  authority,  by  the  constitution,  provide  such  quallfl- 
cations  as  will  deprive  such  authority  of  all  discretion  In  the  exercise  of 
such  power.    People  ex  rel  Balc<ftn  v.  Mosber,  163  N.  Y.  32,  supra. 


BROWN  V.  RUSSELL. 


Supreme  Judicial  Court  of  Massachusetts.    April,  1896. 
166  Massachusetts  14. 

Petition,  filed  July  22,  1895,  for  a  writ  of  mandamus,  to 
Charies  Theodore  Russell,  Jr.,  Arthur  Lord,  and  Edward  P. 
Wilbur,  Civil  Service  Commissioners  of  Massachusetts,  praying 
that  they  be  required  to  restore  the  petitioner  to  the  highest 
place  upon  the  list  of  candidates  eligible  for  certification  and 
appointment  to  a  position  on  the  detective  force  of  the  district 
police  of  the  Commonwealth,  a  preference  for  certification  and 
appointment  having  been  given  to  one  Edward  D.  Bean,  con- 
formably to  the  provisions  of  St.  1895,  c.  501.  Hearing  before 
Allen,  J.,  who,  at  the  request  of  the  petitioner,  and  with  the 
consent  of  the  respondents,  reserved  the  case  for  the  determina- 
tion of  the  full  court.    The  facts  appear  in  the  opinion. 

Field,  C.  J.  In  determining  the  principal  questions  in  this 
case  it  is  necessary  to  consider  the  statutes  relating  to  the  civil 
service,  and  particularly  St.  1895,  c.  501 It  is  obvi- 
ous that  the  civil  service  statutes  and  rules  relate  only  to  cer- 
tain subordinate  offices  and  employments  which  have  been  cre- 
ated by  the  legislature.  None  of  them  is  an  office  or  employ- 
ment of  which  the  duties,  tenure,  or  qualifications  are  prescribed 
by  the  Constitution. 

In  the  present  case  the  petitioner  is  not  a  veteran,  and,  after 
examination,  was  placed  at  the  head  of  the  list  of  candidates 
eligible  for  certification  and  appointment  to  a  position  on  the 
detective  force  of  the  district  police  of  the  Commonwealth,  and 
he  remained  at  the  head  of  the  list  until  July,  1895,  when  the 
commissioners  placed  one  Edward  D.  Bean  at  the  head  of  the 
list,  and  reduced  the  petitioner  to  the  second  place.  Bean  had 
made  application  as  a  veteran,  under  St.  1895,  c.  501,  §  2,  and, 
having  been  found  to  be  a  veteran,  was  without  examination 
placed  first  upon  the  list;  and,  so  far  as  appears,  he  is  the  only 
veteran  on  the  list.     The  district  police  are  appointed  by  the 


BROWN  V.  RUSSELL.  191 

Governor  of  the  Commonwealth,  and  are  subject  to  removal  by 
the  Governor.  Pub.  Sts.  c.  103,  §  1.  If  the  Governor  makes 
requisition  upon  the  commissioners  for  a  candidate  for  appoint- 
ment to  the  office  of  a  detective  upon  this  police  force,  it  is  made 
the  duty  of  the  commissioners,  by  the  St.  of  1895,  to  certify  the 
name  of  Edward  D.  Bean  for  appointment,  and  of  the  Gov- 
ernor to  appoint  him,  if  he  appoints  anybody.  The  Governor, 
perhaps,  may  refuse  to  appoint  anybody,  if  he  is  of  opinion  that 
Bean  is  not  qualified  to  perform  the  duties  of  a  detective  on 
this  force;  or  he  may  wait  until  more  veterans  than  one  are  on 
the  list  of  persons  eligible  to  such  an  appointment,  and  make 
his  selection  from  them;  or  he  may  appoint  Bean,  and  remove 
him  if  he  finds  him  incompetent.  But  then,  if  Bean  is  continued 
on  the  list,  and  is  the  only  veteran  on  it,  or  if  his  application 
is  considered  as  exhausted  by  one  certification  and  he  makes  a 
new  application,  the  statutes,  literally  construed,  make  it  the  duty 
of  the  commissioners  to  put  his  name  again  at  the  head  of  the  list 
for  appointment,  and  on  requisition  by  the  Governor  again  to  cer- 
tify him  for  appointment,  and  so  on,  toties  quoties,  so  long,  as  he 
remains  on  the  list. 

It  is  to  be  noticed  that  the  class  of  veterans,  as  defined  by 
the  statutes,  is  not  a  class  which  anybody  can  become  qualified 
to  enter  by  any  services  which  he  may  perform,  or  by  any  at- 
tainments which  he  may  acquire,  but  it  is  a  class  fixed  and 
determined  by  services  which  were  rendered  a  long  time  before 
any  of  the  statutes  were  passed.  It  is  also  to  be  noticed  that 
the  fact  of  having  been  a  veteran  within  the  meaning  of  the 
statute  in  and  of  itself  has  little  tendency  to  show  that  the 
applicant  is  specially  qualified  to  perform  the  duties  of  many 
of  the  offices  to  which  the  civil  service  statutes  and  rules  relate. 
The  principal  purpose  of  exempting  veterans  from  submitting 
to  an  examination  must  be  that  veterans  sometimes  may  be  ap- 
pointed to  an  office  or  employment  who  would  be  found  on  ex- 
amination not  qualified  to  perform  the  duties  of  the  office  or 
employment  which  they  seek.  One,  and  perhaps  the  chief,  pur- 
pose of  the  exemption  must  be  to  reward  veterans  for  their 
services  in  the  war  of  the  rebellion.  The  reward  is  not  in  the 
nature  of  a  pension  or  payment  of  money,  but  of  an  office  or 
employment,  the  salary  or  pay  of  which  the  veteran  is  to  re- 
ceive. The  provisions  of  the  statutes  exempting  Veterans  are 
general  in  their  nature,  and  relate  to  all  the  offices  or  employ- 
ments that  have  been  or  may  be  included  within  the  civil  service 


19li  QUALIFICATIONS  FOR  OFFICE. 

rules.  From  the  earliest  times  most  nations  have  conferred  hon- 
ors and  oflSces  upon  those  who  have  rendered  distinguished 
service  to  the  State,  particularly  in  war.  These  honors  and 
offices  have  been  conferred  upon  persons  voluntarily  selected, 
and  pensions  and  rewards  sometimes  have  been  given  to  whole 
classes  of  persons,  of  which  the  statutes  of  the  Commonwealth 
relating  to  the  **Aid  to  soldiers  and  sailors  and  to  their  fam- 
ilies," and  the  statutes  of  the  United  States  relating  to  pensions, 
are  well  known  examples;  but  the  statute  of  1895  under  consid- 
eration affords  the  first  instance,  so  far  as  we  know,  in  this 
Commonwealth,  where  the  appointing  power  has  been  compelled 
to  appoint  persons  of  a  certain  class  to  office  in  preference  to  all 
other  persons,  whether  they  are  or  are  not  thought  to  be  quali- 
fied for  the  office  by  the  appointing  power,  or  by  some  public 
officer  or  some  impartial  and  disinterested  board  of  officers  or 
persons  invested  by  law  with  the  power  and  responsibility  of  de- 
termining the  qualifications  of  the  persons  to  be  appointed. 

The  Legislature,  in  establishing  offices  not  provided  for  by  the 
Constitution,  has  often  required  that  the  persons  or  some  of  the 
persons  to  be  appointed  shall  possess  certain  qualifications,  or 
that  some  of  them  shall  be  women  and  some  men,  but  in  all  cases, 
so  far  as  we  are  aware,  the  qualifications  required  bear  such  a 
relation  to  the  duties  imposed  that  they  tend  to  secure  that  kind 
and  degree  of  knowledge,  experience,  and  impartiality  which  are 
requisite  for  the  satisfactory  performance  of  the  duties,  and  it  is 
open  to  any  person  to  acquire  the  qualifications  required.  When 
women  are  to  be  appointed,  there  is  a  satisfactory'  reason  in  the 
nature  of  the  office  or  employment  why  this  should  be  done. 
In  every  such  case  some  discretion  usually  has  been  left  to  the 
appointing  power  in  the  selection  of  the  particular  persons  to  be 
appointed.  The  peculiarity  of  the  civil  service  statutes  and 
rules,  if  St.  1895,  c.  501,  §§  2  and  6,  be  enforced,  is  that  very 
little  is  left  to  the  discretion  of  the  appointing  power  in  the  se- 
lection of  persons  if  there  are  veterans  who  wish  to  be  appointed. 
The  civil  service  commissioners,  in  making  up  the  list  and  in  cer- 
tifying the  persons  to  be  appointed,  must  proceed  in  a  certain 
way  designated  by  the  statutes  and  the  rules,  and  the  appoint- 
ments must  be  made,  if  at  all,  from  the  persons  so  certified.  Be- 
fore the  passage  of  St.  1895,  c.  501,  it  was  in  the  discretion  of 
the  appointing  power  whether  veterans  who  had  been  put  upon 
any  list  without  an  examination,  pursuant  to  St.  1887,  c.  437, 
should  or  should  not  be  certified  for  appointment  by  the  com- 


BROWN  V.  RUSSELL.  193 

tnissioners,  and  it  was  also  in  the  discretion  of  the  appointing 
power  whether,  if  such  veterans  were  certified,  they  should  be 
appointed.  But  if  veterans  make  application  under  St.  1895,  c. 
501,  §  2,  they  are  to  be  preferred  "for  certification  and  appoint- 
ment in  preference  to  all  other  applicants  not  veterans,  except 
women,"  and,  as  separate  lists  are  made  up  for  the  different 
ofiiees  and  employments,  appointments  from  each  list  must  be 
made  from  veterans,  if  any  man  is  appointed,  and  if  there  are 
veterans  on  the  list. 

It  is  the  contention  of  the  petitioner  that  the  privileges  given 
to  veterans  by  the  St.  1895,  c.  501,  §§  2  and  6,  are  in  violation 
of  the  principles  which  underlie  our  system  of  government  im- 
plied in  the  Constitution  of  the  Commonwealth,  and  also  are  in 
violation  of  certain  express  provisions  of  the  Constitution.     .     .     . 

Article  7  is  as  follows:  "Government  is  instituted  for  the 
common  good;  for  the  protection,  safety,  prosperity,  and  happi- 
neses  of  the  people;  and  not  for  the  profit,  honor,  or  private 
interest  of  any  one  man,  family,  or  class  of  men:  Therefore,  the 
people  alone  have  an  incontestable,  unalienable,  and  indefeasible 
right  to  institute  government;  and  to  reform,  alter,  or  totally 
change  the  same,  when  their  protection,  safety,  prosperity,  and 
happiness  require  it." 

This  article  is  declarative  of  the  ends  of  the  institution  of  gov- 
ernment. It  may  be  said  to  be  fairly  within  the  intent  of  this 
article  that  public  offices,  which  are  the  instrumentalities  of  gov- 
ernment, ought  not  to  be  created  or  filled  for  the  profit,  honor, 
or  private  interest  of  any  one  man,  family,  or  class  of  men,  but 
only  for  the  protection,  safety,  prosperity,  and  happiness  of  the 
people,  and  for  the  common  good. 

Article  6  is  as  follows:  "No  man,  nor  corporation  or  asso- 
ciation of  men,  have  any  other  title  to  obtain  advantages,  or  par- 
ticular and  exclusive  privileges,  distinct  from  those  of  the  com- 
munity, than  M^hat  arises  from  the  consideration  of  services  ren- 
dered to  the  public;  and  this  title  being  in  nature  neither  hered- 
itary, nor  transmissible  to  children,  or  descendants,  or  relations 
by  blood,  the  idea  of  a  man  born  a  magistrate,  lawgiver,  or  judge 
is  absurd  and  unnatural." 

In  our  opinion,  the  meaning  of  these  words  in  this  article,  so 
far  as  they  are  applicable  to  public  offices,  is  that  only  on  con- 
sideration of  services  to  be  rendered  to  the  public  therefor  can 
13 


194  QUALIFICATIONS  FOB  OFFICE. 

a  man,  corporation,  or  association  of  men  obtain  advantages  or 
particular  and  exclusive  privileges  distinct  from  those  of  the 
community.  A  person  may  obtain  the  advantages  or  privileges 
attached  to  a  public  office  in  consideration  of  his  performing  the 
duties  of  the  office.  It  is  for  the  purpose  of  rendering  service 
to  the  public  in  a  public  office  that  advantages  and  privileges 
distinct  from  those  of  the  community  may  be  obtained.  *  The 
meaning  of  this  article  was  somewhat  considered  in  Hewitt  v. 
Charier,  16  Pick.  353,  and  it  was  held  that  St.  1818,  c.  113,  was 
not  in  violation  of  the  article.  It  was  there  held  that  the  lead- 
ing purpose  of  that  statute  was  to  guard  the  public  against 
Ignorance,  negligence,  and  carelessness  in  the  practice  of  physic 
and  surgery,  and  that  the  exclusive  privileges  granted  to  such 
persons  as  shall  have  been  licensed  by  the  officers  of  the  Massa- 
chusetts Medical  Society,  or  have  been  graduated  doctors  of  med- 
icine from  Harvard  University,  were  only  incidental  to  the  lead- 
ing purpose  of  the  statute.  In  that  case,  as  in  others  where  a 
license  is  required  before  any  one  can  engage  in  certain  profes- 
sions or  pursuits,  a  service  is  rendered  to  the  public  by  the 
exercise  on  the  part  of  those  licensed  of  the  skill,  knowledge,  and 
experience  required  to  obtain  a  license,  and  by  the  exclusion  of 
ignorant  and  incapable  persons  from  the  profession  or  pursuit. 
But  it  may  be  questioned  whether  this  article  of  the  Declara- 
tion of  Rights  was  intended  to  apply  to  private  pursuits  and 
employments,  and  whether  it  is  not  to  be  confined  to  political 
and  civil  rights  and  privileges. 

The  purpose  of  St.  1895,  c.  501,  §§  2  and  6,  is  to  make  the 
appointment  of  veterans  compulsory,  if  they  desire  to  be  ap- 
pointed, whether  the  appointing  power  or  the  commissioners  think 
they  are  or  are  not  qualified  to  perform  the  duties  of  the  office 
or  employment  which  they  seek.     .    .    . 

The  principal  question  of  law  in  this  case,  broadly  stated,  is 
therefore  as  follows:  Can  the  Legislature  constitutionally  pro- 
vide that  certain  public  offices  and  employments  which  it  has 
created  shall  be  filled  by  veterans  in  preferment  to  all  other  per- 
sons, whether  the  veterans  are  or  are  not  found  or  thought  to 
be  actually  qualified  to  perform  the  duties  of  the  offices  and 
employments  by  some  impartial  and  competent  officer  or  board 
charged  with  some  public  duty  in  making  the  appointments?  If 
such  legislation  is  not  constitutional  as  regards  public  offices,  the 
question  incidentally  may  arise  whether  a  distinction  can  be  made 


BROWN  V.  RUSSELL.  195 

between  public  offices  and  employments  by  the  public  which  are 
not  offices. 

Public  offices  are  created  for  the  purpose  of  effecting  the  ends 
for  which  government  has  been  instituted,  which  are  the  common 
good,  and  not  the  profit,  honor,  or  private  interest  of  any  one 
man,  family,  or  class  of  men.  In  our  form  of  government  it  is 
fundamental  that  public  offices  are  a  public  trust,  and  that  the 
persons  to  be  appointed  should  be  selected  solely  mth  a  view  to 
the  public  welfare.  In  offices  which  are  created  by  the  Legisla- 
ture, where  the  method  of  appointment  is  not  prescribed  by  the 
Constitution,  the  Legislature,  if  no  limitation  is  put  upon  its 
power  by  the  Constitution,  can  take  upon  itself  the  responsibility 
of  selecting  the  persons  to  be  appointed,  or  can  confer  the  power 
of  appointment  upon  public  officers  or  boards,  or  upon  the  inhab- 
itants of  cities,  towns,  or  districts;  but  we  think  that  it  is  in- 
consistent with  the  nature  of  our  government,  and  particularly 
with  articles  6  and  7  of  our  Declaration  of  Rights,  that  the  ap- 
pointing power  should  be  compelled  by  legislation  to  appoint  to 
public  offices  persons  of  a  certain  class  in  preference  to  all  oth- 
ers, without  the  exercise  on  its  part  of  any  discretion,  and  with- 
out the  favorable  judgment  of  some  legally  constituted  officer 
or  board  designated  by  law  to  inquire  and  determine  whether  the 
persons  to  be  appointed  are  actually  qualified  to  perform  the 
duties  which  pertain  to  the  offices. 

There  are  many  employments  by  the  Commonwealth,  or  by  the 
cities  and  towns  of  the  Commonwealth,  which  do  not  constitute 
the  employee  a  public  officer.  The  work  of  the  Commonwealth, 
and  of  the  cities  and  towns,  must  be  done  by  agents  or  servants, 
and  much  of  it  is  of  the  nature  of  an  employment 

The  persons  appointed  to  the  detective  department  of  the  dis- 
trict police  force  of  the  commonwealth,  under  Pub.  Sts.  c.  103, 
and  the  acts  in  amendment  thereof,  are  public  officers,  and  not 
merely  employees  of  the  Commonwealth.  They  are  appointed  by 
the  Governor  for  the  term  of  three  years,  subject  to  removal  by 
the  Governor,  and  they  "have  and  exercise  throughout  the  Com- 
monwealth all  the  powers  of  constables  (except  the  service  of 
civil  process),  police  officers,  and  watchmen,  and  may  be  trans- 
ferred from  one  district  to  another;  and  the  Governor  may  at 
any  time  command  their  services  in  suppressing  riots  and  in  pre- 
serving the  peace."  Pub.  Sts.  c.  103,  §  2.  They  give  bonds  to 
the  Treasurer  of  the  Commonwealth  and  receive  a  stated  salary 
from  the  treasury  of  the  Commonwealth.     They  have  and  exer- 


;l&6  QUALIFICATIONS  FOE  OFFICE. 

cise  some  of  the  powers  of  government.  We  are  of  opinion  that 
§§  2  and  6  of  St.  1895,  c.  501,  so  far  as  they  purport  absolutely 
to  give  to  veterans  particular  and  exclusive  privileges  distinct 
from  those  of  the  community  in  obtaining  public  office,  cannot 
be  upheld  as  enactments  within  the  constitutional  power  of  the 
General  Court. 

The  result  is,  that  the  commissioners  were  not  authorized  by 
St.  1895,  c.  501,  §§  2  and  6,  without  an  examination,  to  place 
the  name  of  Edward  D.  Bean  at  the  head  of  the  list  to  be  certi- 
fied for  appointment  upon  the  detective  force  of  the  district 
police  of  the  Commonwealth  in  preference  to  all  other  applicants 
not  veterans  or  women;  and  that  they  should  be  commanded  to 
strike  his  name  from  the  list. 

Mandamus  to  issue  accordingly 


MATTER  OF  WORTMAN. 

New  York  Supreme  Court.    Erie  Special  Term;  July,  1888. 
22  Abbott's  New  Cases  137. 

Motion  for  a  mandamus  to  compel  the  common  council  of  the 
city  of  Buffalo  to  give  its  consent  to  the  appointment  of  the  peti- 
tioner to  the  position  of  street  inspector. 

Daniels,  J.  The  applicant  shows  by  his  petitioner  that  the 
street  commissioner  of  the  city  of  Buffalo  was  empowered  by  the 
common  council  of  the  city  to  select  thirteen  health  and  street 
inspectors  of  the  city  of  Buffalo:  that  under  the  civil  service 
rules  adopted  and  in  force  in  the  city  of  Buffalo,  the  relator 
was  certified  to  the  street  commissioner  for  one  of  such  appoint- 
ments. And  his  selection  for  that  office  was  reported  by  the 
commissioner  to  the  common  council  of  the  city. 

By  section  50  of  title  2  of  the  existing  charter  of  the  city, 
the  street  commissioner  was  empowered  by  and  with  the  advice 
and  consent  of  the  common  council,  to  appoint  the  applicant 
with  a  sufficient  number  of  others  to  supply  the  offices  as  street 
and  health  inspectors  of  the  city.  The  common  council,  how- 
ever in  the  action  which  they  took  upon  the  selections  by  the 
street  commissioner  on  the  7th  day  of  May,  1888,  declined  to 
consent   to   the   appointment   of   the   applicant,   and   it   **is   to 


MATTER  OP  WORTMAN,  197 

oblige  the  common  council  to  give  such  consent  that  this  appli- 
cation for  the  writ  of  mandamus  has  been  made.  And  it  pro- 
ceeds upon  the  statement  that  the  applicant  is  an  honorably 
discharged  Union  soldier  of  the  war  of  the  rebellion,  having 
suffered  no  physical  impairment  incapacitating  him  from  the 
full  performance  of  his  duty  as  such  street  and  health  inspector, 
and  having  the  business  capacity  necessary  to  discharge  the  du- 
ties of  the  position,  and  was  so  certified  by  said  civil  service 
commission  to  said  street  commissioner." 

It  is  further  stated  in  the  petition  ''that  subsequent  to  such 
appointment  and  on  or  about  the  7th  of  May,  1888,  the  said 
Henry  Quinn,  street  commissioner,  communicated  and  transmit- 
ted to  the  common  council  of  the  city  of  Buffalo  his  appoint- 
ment of  your  petitioner  as  health  and  street  inspector." 

The  application  in  behalf  of  the  petitioner  has  been  made 
under  the  authority  of  chapter  464  of  the  Laws  of  1887,  which 
has  provided  that  "in  every  public  department  and  upon  all 
public  works  of  the  State  of  New  York  and  of  the  cities,  towns, 
and  villages  thereof,  and  also  in  non-competitive  examinations 
under  the  civil  service  laws,  rules  or  regulations  of  the  same, 
whereby  they  apply,  honorably  discharged  Union  soldiers  and 
sailors  shall  be  preferred  for  appointment  and  employment.  Age, 
loss  of  limb,  or  other  physical  impairment,  which  does  not  in 
fact  incapacitate,  shall  not  be  deemed  to  disqualify  them,  pro- 
vided they  possess  the  business  capacity  necessary  to  discharge 
the  duties  of  the  position  involved." 

It  has  been  further  objected  by  the  counsel  for  the  city  that 
the  laws  are  in  conflict  with  section  1,  of  amendment  14,  of  the 
Constitution  of  the  United  States,  prohibiting  the  State  from 
making  or  enforcing  "any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States,  nor  shall  any 
State  deprive  any  person  of  life,  liberty  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  law." 

The  only  part  of  this  section  which  by  any  possibility  could 
be  relied  upon  by  way  or  argument  to  defeat  the  application,  is 
that  contained  in  the  last  branch  of  the  sentence.  But  neither 
of  these  statutes  has  denied  to  any  person  within  the  jurisdic- 
tion of  the  State  the  equal  protection  of  its  laws.  No  citizen  is 
deprived  of  any  right  or  privilege  constitutionally  secured  to 
him  by  reason  of  those  laws.    A  preference  only  for  official  em- 


198  (QUALIFICATIONS  FOB  OFFICE. 

ployment  has  been  given  to  honorably  discharged  soldiers  and 
sailors  as  a  reward  for  meritorious  service  performed  by  them 
during  the  war  by  which  the  Union  was  sustained  and  the  re- 
bellion suppressed. 

So  far  as  the  laws  extend,  there  seems  to  be  no  constitutional 
objection  against  their  validity,  and  no  officer  or  appointing  pow- 
er— as  these  words  have  been  employed  by  the  statutes  of  1886 — 
has  authority  to  deny  this  preference  to  the  class  of  persons 
who  are  brought  within  the  provisions  of  these  statutes.  And 
where  the  proceeding  may  be  such  as  arbitrarily  to  deny  the  priv- 
ilege secured  by  these  statutes  a  mandamus  would  be  the  appro- 
priate remedy  to  enforce  the  performance  of  the  duty  (People 
V.  Leonard,  74  N.  Y.  443).  And  authority  for  its  allowance  has 
been  secured  by  sections  2068  and  2070  of  the  Code  of  Civil  Pro- 
cedure. 

But  a  radical  defect  appears  in  the  petition  preventing  the 
success  of  the  applicant's  motion,  for  it  has  nowhere  been  stated 
that  the  fact  that  he  was  an  honorably  discharged  Union  soldier 
of  the  war  of  the  rebellion  had  been  brought  to  the  attention  of 
the  common  council  before  it  took  its  action  upon  the  selections 
or  appointments  of  the  street  commissioner  of  the  street  in- 
spectors. It  has  been  stated  in  the  petition  that  this  fact  has 
been  brought  to  the  knowledge  of  the  commissioner  himself  and 
it  rightly,  on  that  account,  influenced  his  action.  But  the  peti- 
tion does  not  show  that  knowledge  of  this  fact  was  communi- 
cated to  the  common  council.  All  that  is  stated  upon  this  sub- 
ject is  that  the  commissioner  communicated  and  transmitted  to 
that  body  his  appointment  of  the  petitioner  as  health  and  street 
inspector.  This  was  very  far  from  apprising  that  body  of  the 
fact  that  he  had  been  selected  and  appointed,  or  was  entitled  to 
be,  under  the  laws  securing  to  him  this  preference  as  a  dis- 
charged Union  soldier. 

Without  notice  of  that  fact  the  common  council  was  authorized 
and  empowered  to  proceed  with  the  consideration  of  the  case  pre- 
cisely the  same  as  though  the  fact  itself  did  not  exist,  and  to  re- 
ject his  selection  and  appointment  under  the  authority  of  the 
charter,  rendering  it  dependent  upon  the  advice  and  consent  of 
the  common  council.  On  this  account  the  application  of  the  pe- 
titioner must  fail,  and  the  motion  for  the  writ  of  mandamus  will 
be  denied. 


ATTORJfEY  GENERAL  V.  BOARD  OF  COUNCELMEN.  199 

3.    Political  Qualifications. 

[ATTORNEY  GENERAL  V.  THE  BOARD  OF  COUNCILMEN. 

Supreme   Court  of  Michigan.    October,  1885. 
58  Mich.  213. 

Campbell,  J,  The  Attorney  General  applies  for  a  mandamus 
to  compel  the  respondents  to  take  action  upon  certain  nomina- 
tions made  by  the  mayor  of  Detroit  of  four  persons,  two  being 
Republicans  and  two  being  Democrats,  to  act  as  a  "Board  of 
Commissioners  of  Registration  and  Election"  for  the  city  of  De- 
troit. Respondents  refused  to  consider  the  nominations  because 
they  regarded  the  statute  which  provides  for  such  board  as  un- 
constitutional and  invalid.  To  an  order  to  show  cause  they  in- 
terpose that  ground  of  defense.  No  other  question  is  of  much 
importance  in  the  case. 

The  new  statute  undertakes  to  provide  a  Board 

of  Commissioners  to  appoint  ward  registers  and  inspectors  who 
are  to  perform  the  duties  formerly  imposed  on  the  boards  made 
up  of  aldermen  and  their  appointees  and  of  persons  elected  by 
the  voters.  The  board  thus  provided  for  is  required  to  be  com- 
posed of  four  members  holding  office  for  four  years,  the  first 
board  being  appointed  for  one,  two,  three  and  four  years  re- 
spectively, so  that  one  vacancy  shall  be  filled  each  year.  They 
are  all  to  be  resident  electors  of  the  city,  and  "two  members 
thereof  to  be  from  each  of  the  two  leading  political  parties  in 
the  said  city." 

It  is a    most    important    principle    under    our 

constitutional  system,  that  no  one  shall  be  affected  in  any  of  his 
legal  and  political  rights  by  reason  of  his  opinions  on  political 
subjects  or  other  matters  of  individual  conscience.  The  political 
right  to  freedom  of  belief  and  expression  is  asserted  in  the  most 
distinct  way,  and  applies  to  every  privilege  which  the  constitu- 
tion confers.  No  one  has  ever  supposed  that  any  new  condition 
could  be  added  to  those  which  the  Constitution  has  imposed  on 
the  right  of  suffrage,  beyond  such  as  are  necessary  to  guard 
against  double  voting,  or  to  prevent  its  exercise  by  those  who 
are  not  legal  voters.  The  only  legitimate  object  of  registration 
laws  is  to  secure  a  correct  list  of  actually  qualified  voters.    Any 


200  QUALIFICATIONS  FOR  OFFICE. 

attempt  to  inquire  into  the  sentiment  of  voters  is  not  only  an 
abuse,  but  one  which  it  is  the  chief  purpose  of  the  ballot  system 
to  prevent.  The  ballot  is  a  constitutional  method  which  cannot 
be  changed,  and  its  perpetuation  means  the  security  to  vote  with- 
out any  inquisition  into  the  voter's  opinion  of  men  or  measures. 
And  it  would  be  entirely  meaningless  if  the  voter's  choice  of 
candidates  for  any  office  must  be  made  from  any  particular  party 
or  number  of  parties.  But  the  constitution  has  made  this  more 
specific  (although  this  was  hardly  necessary),  by  providing,  after 
giving  the  form  of  an  official  oath,  that  * '  no  other  oath,  declara- 
tion or  test  shall  be  required  as  a  qualification  for  any  office  or 
public  trust." 

It  is  manifest  that  every  important  function  of  government 
comes  under  one  or  the  other  of  these  heads  of  office  or  public 
trust.  The  board  of  registration  commissioners  consists,  under 
this  statute  of  persons  holding  permanent  offices.  The  district 
registrars,  clerks  and  inspectors  perform  functions  connected  with 
the  most  vital  and  important  action  of  citizens  in  their  capacity 
as  choosers  of  the  officers  of  government.  The  constitutional  rule 
covers  them  all,  literally  as  well  as  impliedly. 

It  was  urged  in  the  argument  that  if  the  term  test  can  be 
held  applicable  to  inquiries  into  party  affiliations,  it  is  equally 
applicable  to  those  other  qualifications  often  required  for  public 
service,  such  as  education,  scientific  acquirements  in  surveyors  and 
other  specialists,  legal  knowledge  in  law  officers,  and  the  like. 
But  this  is  not  so.  Not  only  is  it  evident  from  the  other  provis- 
ions in  this  clause  that  all  of  the  exemptions  referred  to  are  such 
as  would  be  applicable  in  all  sorts  of  offices,  but  the  use  of  the 
word  test  is  especially  significant  because  its  recognized  legal 
meaning  in  our  Constitution  is  derived  from  the  English  Test 
Acts,  all  of  which  related  to  matters  of  opinion,  and  most  of  them 
to  religious  opinion.  Such  has  been  the  general  understandinj? 
of  framers  of  constitutions.  If  this  were  not  so,  and  if  the  pow- 
er of  the  legislature  in  imposing  conditions  of  office  is  at  the 
same  time  only  restrained  by  express  clauses  applying  in  terms 
to  officers  and  to  no  one  else,  it  would  not  be  difficult  for  any 
dominant  party  controlling  the  legislature  to  perpetuate  its 
power  until  overthrown  by  revolution.  But  such  discriminations 
are  as  repugnant  to  the  rights  of  voters  in  selecting  as  to  the 
rights  of  those  chosen  in  assuming  office,  and  this  clause  is  but 
an  additional  assertion  of  a  principle  found  in  other  parts  of  the 
Constitution,  expressed  or  clearly  implied. 


ATTORNEY  GENERAL  V.  BOARD  OF  COUNCILMEN.  201 

In  the  case  of  People  v.  Hurlhurt,  24  Mich,  44,  it  was  not 
disputed  by  any  of  the  judges  who  referred  to  the  matter,  that 
it  would  not  be  lawful  to  confine  the  choice  of  officers  to  partic- 
ular parties,  although  two  of  the  judges  thought  that  the  pro- 
vision in  that  particular  case  was  capable  of  being  eliminated 
from  the  statute.  And  it  is  claimed  in  the  present  case  that  the 
present  law  is  declared  and  intended  to  be  non-partisan,  and  that 
the  board  may  be  chosen  without  reference  to  this  restriction  of 
party  membership. 

It  is  altogether  likely  that  the  framers  of  the  law  were  of  opin-. 
ion  that  the  evils  of  partisan  action  and  the  temptation  to  carry 
it  to  abusive  extremes  would  be  lessened  by  requiring  that  one 
party  should  not  monopolize  the  offices  but  that  two  should  share 
them.  No  one  can  doubt  the  advantage  of  impartiality  in  public 
action.  But  parties,  however  powerful  and  unavoidable  they 
may  be,  and  however*  inseparable  from  popular  government,  are 
not  and  cannot  be  recognized  as  having  any  legal  authority  as 
such.  The  law  cannot  regulate  or  fix  their  numbers,  or  com- 
pel or  encourage  adherence  to  them.  Many  good  citizens  form 
no  permanent  party  ties,  and  when  elections  are  close  the  effort 
of  each  party  is  to  detach  votes  from  the  friends  of  the  other. 
Where  there  are  two  parties  larger  than  any  others,  the  success  of 
either  is  very  often  gained  by  coalition  with  a  third  one.  In 
local  matters  party  allegiance  is  not  uncommonly  laid  aside  for 
the  time  being  so  that  it  cannot  be  said  that  any  party  is  repre- 
sented in  the  election.  However  well  meant  such  a  statute  as 
that  before  us  may  be,  it  distinctly  makes  party  adhesion  a 
condition  of  office,  and  not  only  so,  but  it  puts  all  but  the  two 
favored  parties  beyond  the  possibility  of  representation,  if  the 
law  is  obeyed. 

It  is  equally  clear  that  this  party  representation  is  the  es- 
sential purpose  of  the  law,  and  that  the  other  changes  are  merely 
subsidiary.  There  are  some  changes  in  detail,  but  the  main  pur- 
pose cannot  be  mistaken.  The  partisan  qualifications  are  made 
emphatic  in  regard  to  all  the  officers.  It  is  impossible  for  any  cantlid 
person  to  read  the  act  and  believe  that  the  real  legislative  design 
can  be  carried  out  by  leaving  the  mayor  and  councilmen  at  liberty 
to  choose  commissioners  from  a  single  party,  or  for  the  commis- 
sioners to  appoint  registrars  and  inspectors  without  distinction  of 
party  at  their  pleasure.  And  it  would  need  no  great  sagacity  to 
see  that  if  such  unlimited  power  were  vested  in  a  body  made  up 
as  this  body  might  then  be  constituted,  all  of  the  old  evils  would 


202  QUALIFICATIONS  FOB  OFFICE. 

remain,  and  would  be  made  worse  by  the  absence  of  any  responsi- 
bility to  the  voters  of  the  precincts. 

In  my  judgment  the  creation  of  a  board  with  such  powers  as 
are  given  to  this  board  is  quite  as  serious  an  infringement  of  the 
constitution  as  the  partisan  clauses,  and  much  more  dangerous. 

As  the  defects  which  have  led  to  a  refusal  of  a  mandamus  in  this 
case  invalidate  the  whole  law,  there  is  no  occasion  to  consider  any- 
thing else.    In  my  opinion  either  of  them  is  fatal. 

Champlin  and  Sherwood,  JJ.,  concurred. 

Morse,  C.  J.,  delivered  concurring  opinion. 


ROGERS  V.  COMMON  COUNCIL. 

Court  of  Appeals  of  New  York.    October,  1890. 
123  N.  r.  173. 


This  action  was  brought  by  plaintiff,  as  a  tax-payer  of  the  city 
of  Buffalo,  to  restrain  the  defendants,  the  common  council  and 
mayor,  etc.,  of  said  city,  from  authorizing,  drawing  or  paying  any 
warrant  for  the  salary  of  the  defendant.  Ceriac  Diebold,  as  street 
and  health  inspector  of  the  city  of  Buffalo,  on  the  ground  that  his 
appointment  was  in  violation  of  the  civil  service  law  and  of  the 
rules  prescribed  thereunder  by  the  mayor  of  said  city. 

Peckham,  J. 

The  defendant  alleges  that  the  acts  are  unconstitutional  because 
among  other  reasons  they  provide  for  the  appointment  by  the 
governor,  and  for  the  confirmation  by  the  senate,  of  three  persons 
as  state  civil  service  commissioners,  not  more  than  two  of  whom 
shsrtl  be  adherents  of  the  same  party.  This  last  provision  pre- 
venting the  formation  of  a  civil  service  board  of  commissioners 
from  one  political  party  is  cited  as  a  violation  of  article  1,  section 
1  of  our  constitution  which  declares  that  **no  member  of  this  state 
shall  be  disfranchised  or  deprived  of  any  of  the  rights  or  privi- 
leges secured  to  any  citizen  thereof,  unless  by  the  law  of  the  land 
or  judgment  of  his  peers."  The  provision  is  also  claimed  to  be 
a  violation  of  that  part  of  section  6  of  article  1,  which  declares 


ROGERS  V.  COMMON  COUNCIL.  203 

that  no  person  shall  be  * '  deprived  of  life,  liberty  or  property  with- 
out due  process  of  law."  Provisions  of  a  nature  similar  to  this 
act  are  contained  in  numerous  statutes,  which  have  been  enacted 
since  the  adoption  of  our  constitution.  Among  the  latest  are  those 
creating  the  state  railroad  commission  and  the  state  board  of  arbi- 
tration. In  appointing  such  commissioners  the  governor  is  not 
permitted  to  take  them  all  from  one  party.  None  of  these  statutes 
has  been  held  unconstitutional,  and  so  far  as  I  can  discover  this 
provision  has  never  been  assailed  as  a  violation  of  the  constitu- 
tion. It  is  not  conclusive  of  course,  yet  the  fact  that  up  to  this 
time  no  such  claim  has  been  made  in  any  legal  discussion,  while 
statutes  containing  provisions  of  this  kind  have  been  frequent,  is 
something  of  an  argument  in  favor  of  their  validity. 

We  feel  quite  clear  that  such  provisions  are  not  in  violation  of 
the  first  section  of  article  1  of  the  constitution,  A  citizen  is 
not,  within  the  meaning  of  this  section,  in  such  a  case  disfran- 
chised, nor  is  he  deprived  of  any  rights  or  privileges  secured  to 
any  other  citizen  of  the  state.  No  definition  that  could  be  given 
would  probably  include  all  the  cases  that  such  section  might  cover, 
and  it  is  never  well  to  attempt  a  general  definition  in  matters  of 
this  nature.  It  is  enough  to  say  as  each  case  presents  itself  that  it 
is  or  is  not  included  within  the  section. 

The  claim  of  defendant  upon  the  facts  of  this  case  is  that  after 
two  persons  have  been  appointed  from  one  political  party,  the 
legislature  has  no  right  to  direct  that  in  appointing  a  third,  as 
one  of  three  commissioners,  such  appointment  must  be  made  from 
some  other  than  the  same  political  party  that  furnished  the  other 
two.  It  is  urged  that  the  legislature  has  no  right,  because  the 
applicant  for  the  third  appointment  might  be  a  member  of  the 
same  political  party  as  the  two  already  appointed,  and  that  he 
has  a  constitutional  right  to  be  eligible  for  such  appointment,  and 
any  statute  which  stands  in  the  way  of  such  right  (save  as  a  pun- 
ishment for  crime  or  as  a  consequence  of  a  conviction  thereof) 
must  deprive  him  of  the  franchise  or  privilege  of  eligibility  to 
office,  and,  therefore,  amounts  to  his  prescription  to  that  extent, 
and  is  for  that  reason  a  violation  of  the  constitution.  We  think 
not. 

The  appellant  bases  his  argument  upon  the  proposition  that 
every  citizen  has  a  right,  which  is  protected  by  the  constitution, 
to  be  regarded  as  eligible  to  hold  any  office,  unless  the  constitu- 
tion has  itself  prescribed  certain  qualifications  for  such  holding. 
He  then  asserts  that  the  statute  in  question  violates  this  constitu- 


204  QUALIFICATIONS  FOB  OFFICE. 

tional  right.  It  is  not  necessary  in  the  view  we  take  of  this  statute, 
to  decide  upon  the  correctness  of  the  claim  as  to  the  eligibility 
of  the  citizen  to  hold  office  as  made  by  the  appellant  under  the 
provisions  of  the  constitution.  We  will,  simply  for  the  purpose 
of  this  discussion,  assume  it  to  be  correct.  But  we  do  not  think 
that  this  statute  violates  any  constitutional  right  of  the  individual. 

We  think  his  right  to  be  regarded  as  eligible  to  hold  office  under 
this  statute  is  fully  recognized  when  he  stands  on  an  equal  footing 
with  others  of  his  class,  all  of  whom  are  eligible.  Where  there 
are  two  offices,  which  members  of  the  same  party  may  fill,  if  he 
being  a  member  of  such  party,  is  equally  eligible  with  any  other 
member  of  that  party  to  fill  either,  his  constitutional  privilege 
to  hold  office  is  fully  recognized  and  vindicated.  It  must  be  re- 
membered that  there  is  nothing  in  this  statute  which  compels  the 
appointment  of  even  one  member  of  any  political  party.  It  simply 
prevents  the  appointment  of  more  than  two  from  such  party. 

With  the  appointment  of  a  third  another  condition  arises,  and 
that  condition  prevents  the  selection  being  made  from  the  ranks  of 
the  same  political  party  from  which  the  other  two  appointments 
have  been  made.  Having  been  a  member  of  the  eligible  class  from 
which  the  other  two  persons  were  selected,  and  having  thus  had 
his  constitutional  chance  of  appointment  equally  with  all  others 
of  that  class,  all  being  eligible,  we  cannot  think  that  while  two 
others  from  his  class  have  been  taken,  and  consequently  he  has 
been  omitted  in  the  two  appointments,  his  eligibility  for  holding 
office  extends  by  virtue  of  this  section  of  the  Constitution  to  the 
right  of  appointment  as  the  third  member  of  said  commission  in 
spite  of  the  condition  limiting  the  appointment  to  two  from  any 
one  political  party.  In  such  case  it  cannot  be  truly  said  that  the 
eligibility  to  hold  office  depends  upon  party  affiliation.  The  pur- 
pose of  the  provision  is,  of  course,  plain.  It  seeks  to  secure  the 
appointment  of  persons  who  are  not  all  of  the  same  political 
views,  and  thus  to  provide  for  a  representation  in  the  body  so  ap- 
pointed, of  different  and  probably  conflicting  interests  in  the  state. 
We  cannot  believe  that  the  section  in  question  does  or  was  intend- 
ed to  operate  so  as  to  prevent  the  execution  of  such  a  purpose  so 
carried  out. 

But,  in  our  judgment,  legislation  which  creates  a  board  of  com- 
missioners consisting  of  two  or  more  persons,  and  which  provides 
that  not  more  than  a  certain  proportion  of  the  whole  number  of 
commissioners  shall  be  taken  from  one  party,  does  not  amount  to 


ROGERS  V.  COMMON  COUNCIL.  205 

an  arbitrary  exclusion  from  office  nor  to  k  general  regulation  re- 
quiring qualifications  not  mentioned  in  the  constitution.  The 
"qualifications'*  which  were  in  the  mind  of  the  learned  chancellor 
were  obviously  those  which  were,  as  he  said,  arbitrary,  such  as 
to  exclude  certain  persons  from  eligibility  under  any  circumstances. 
Thus  a  regulation  excluding  all  physicians  would  be  arbitrary. 
But  would  a  regulation  which  created  a  board  of  health  and  pro- 
vided that  not  more  than  one  physician  from  any  particular  school, 
or  none  but  a  physician  should  be  appointed  thereon,  be  arbitrary 
or  unconstitutional  as  an  illegal  exclusion  from  office?  I  think 
not. 

The  purpose  of  the  statute  must  be  looked  at,  and  the  practical 
results  flowing  from  its  enforcement.  If  it  be  obvious  that  its 
purpose  is  not  to  arbitrarily  exclude  any  citizen  of  the  state,  but 
to  provide  that  there  shall  be  more  than  one  party  or  interest  rep- 
resented, and  if  its  provisions  are  apt  for  such  purpose,  it  will 
be  difficult  to  say  what  constitutional  provisions  is  violated,  or 
wherein  its  spirit  is  set  at  nought. 

The  case  is  entirely  different  from  that  of  Attorney-General  v. 

City  of  Detroit,  58  Mich.  213. 

In  our  judgment  there  is  nothing  in  the  first  section  of  article 
1  which  invalidates  this  legislation.  It  is  equally  apparent  that 
the  statute  does  not  violate  the  provisions  of  section  6,  of  the 
same  article,  prohibiting  any  person  from  being  deprived  of  life, 
liberty  or  property  without  due  process  of  law.  He  is  not  de- 
prived of  his  life  or  his  property  by  this  statute.  Giving  the 
widest  definition  to  the  word  ''liberty"  as  including  the  right 
to  be  eligible  to  hold  office,  the  discussion  already  had  shows  that 
it  has  not  been  disregarded  under  this  law. 

Another  objection  to  the  validity  of  the  statute  is  stated  by  the 
appellant.  He  says  the  statute  violates  article  10,  section  2,  which 
provides  that  "All  city,  town  and  village  officers,  whose  election 
or  appointment  is  not  provided  for  by  this  Constitution,  shall  be 
selected  by  the  electors  of  such  cities,  towns  or  villages,  or  of  such 
division  thereof,  or  appointed  by  such  authorities  thereof  as  the  leg- 
islature shall  designate  for  that  purpose."  His  argument  runs 
in  this  manner:  The  statute  provides  that  the  mayor  shall  pro- 
vide general  rules  under  which  city  officers  are  to  be  selected,  which 
shall  go  into  effect  when  approved  by  the  state  civil  service  com- 
mission. The  powers  of  the  local  authorities  to  select  city  officers 
are,  therefore,  as  he  argues,  subordinated  to  the  power  of  the  state 
authorities.    We  think  the  proposition  cannot  be  maintained.   The 


206  QUALIFICATIONS  FOR  OFFICE. 

powers  of  the  local  authorities  to  select  city  officers,  within  the 
meaning  of  this  section  of  the  constitution,  are  not  subordinated  to 
those  of  the  state  authorities  by  the  mere  necessity  for  the  sub- 
mission of  the  regulations  concerning  their  appointment  to  the 
state  board.  The  statute  provides  that  the  mayor  is  to  prescribe 
such  regulations  for  the  admission  into  the  civil  service  as  will 
best  promote  the  efficiency  thereof  and  ascertain  the  fitness  of  can- 
didates in  respect  to  character,  knowledge  and  ability  for  the 
branch  of  the  service  into  which  they  seek  to  enter.  These  regu- 
lations are  to  take  effect  upon  the  approval  of  the  state  commis- 
sion. The  mayor  has  in  the  first  instance  the  sole  right  to  pre- 
scribe regulations,  but  they  are  to  be  such  as  shall  best  promote 
the  efficiency  of  the  service,  and  ascertain  the  fitness  of  the  can- 
didates. The  submission  of  such  regulations  to  a  state  board  be- 
fore they  are  to  take  effect,  does  not  interfere  with  the  general 
powera  of  the  local  authorities  to  appoint  to  office.  The  state 
board  cannot  itself  make  the  regulations  or  alter  them.  The  reg- 
ulations themselves  can  only  be  for  the  purpose  of  establishing 
efficiency  and  ascertaining  the  fitness  of  candidates.  The  same 
local  authorities  are  to  make  the  appointments  that  did  so  before 
the  statute  was  passed.  Means  are  simply  taken  to  insure  the  ap- 
pointment of  fit  and  capable  persons.  The  general  plan  pro- 
vided in  the  statute  would  seem  to  be  a  fit  and  appropriate  one 
for  the  purpose  of  accomplishing  that  result. 

It  is  not  denied  that  illegal  or  improper  regulations  may  pos- 
sibly be  prescribed  by  the  mayor  and  approved  by  the  commission. 
This  fact  does  not  affect  the  validity  of  the  statute.  The  rule  or 
regulation  which  is  alleged  to  be  invalid  may  be  brought  before 
the  court  by  some  person  whose  rights  have  been  affected  thereby, 
and  judgment  may  be  thus  given  in  regard  to  such  validity.  The 
defendant,  Diebold,  does  not  show  that  he  has  lost  any  right  or  that 
any  right  of  his  has  been  injuriously  affected  by  any  regula- 
tion adopted  by  the  mayor  and  approved  by  the  state  commission, 
and  he  cannot,  therefore,  be  heard  upon  a  question  which  is,  as 
to  him,  a  mere  abstraction. 

Still  another  ground  of  invalidity  is  alleged  by  the  appellant. 
He  says  that  the  statute  conflicts  with  article  12,  which  provides 
for  the  taking  of  an  oath  of  office  by  members  of  the  legislature 
and  all  officers,  executive  and  judicial,  before  they  enter  on  the 
duties  of  their  respective  offices,  which  oath  is  therein  set  forth, 
and  it  is  there  stated  that  "no  other  oath,  declaration  or  test  shall 
be  required  as  a  qualjfica*km  for  any  office  of  public  trust.** 


ROGERS  V.  COMMON  COUNCIL.  207 

The  statute  by  which  an  applicant  for  appointment  to  a  posi- 
tion in  a  public  office  is  made  to  show  his  fitness  therefor  is  claimed 
to  constitute  an  illegal  test  within  the  meaning  of  this  section. 
It  is  said  that  the  legislature  has  no  right  to  enact  that  a  person 
who  shall  be  appointed  to  a  public  office  shall  have  the  qualifica- 
tions necessary  to  enable  him  to  discharge  the  duties  of  such  office, 
nor  to  provide  that  the  fact  that  he  does  possess  such  qualifications 
shall  be  ascertained  by  a  fair,  open  and  proper  examination. 
Nothing  but  the  bare  oath  mentioned  in  the  Constitution  can  be 
asked  of  any  applicant  for  an  appointive  office  is  the  claim  of  the 
appellant.  We  do  not  think  that  the  provision  above  cited  was  ever 
intended  to  have  any  such  broad  construction.  Looking  at  it 
as  a  matter  of  common  sense,  we  are  quite  sure  that  the  framers 
of  our  organic  law  never  intended  to  oppose  a  Constitutional  bar- 
rier to  the  right  of  the  people  through  their  Legislature  to  enact 
laws  which  should  have  for  their  sole  object  the  possession  of  fit 
and  proper  qualifications  for  the  performance  of  the  duties  of  a 
public  office  on  the  part  of  him  who  desired  to  be  appointed  to  such 
office.  So  long  as  the  means  adopted  to  accomplish  such  end  are 
appropriate  therefor,  they  must  be  within  the  legislative  power 
The  idea  cannot  be  entertained  for  one  moment  that  any  intel- 
ligent people  would  ever  consent  to  so  bind  themselves  with  con- 
stitutional restrictions  on  the  power  of  their  own  representative 
as  to  prevent  the  adoption  of  any  means  by  which  to  secure,  if 
possible,  honest  and  intelligent  service  in  public  office.  No  law  in 
volving  any  test  other  than  fitness  and  ability  to  discharge  the 
duties  of  the  office  could  be  legally  enacted  under  color  of  a  pur- 
pose to  ascertain  or  prescribe  such  fitness.  Statutes  looking  only 
to  the  purpose  of  ascertaining  whether  candidates  for  an  appoint- 
ive office  are  possessed  of  these  qualifications  which  are  necessary 
for  a  fit  and  intelligent  discharge  of  the  duties  pertaining  to  such 
office  are  not  dangerous  in  their  nature,  and  in  their  execution  they 
are  not  liable  to  abuse  in  any  manner  involving  the  liberties  of  the 
people. 

Most,  if  not  all,  of  the  provisions  of  the  federal  and  state  con- 
stitutions, which  are  of  the  nature  of  a  bill  of  rights,  were  placed 
therein  with  reference  to  English  history  and  the  stru^les  of  lib- 
erty which  such  history  recorded.  Declarations,  oaths  and  tests 
as  a  condition  for  holding  office  had  been  frequently  resorted  to 
by  the  parliament  of  Great  Britain  for  the  purpose  of  promoting 
the  prosperity  of  one  religion  or  insuring  the  downfall  of  an- 
other. 


208  QUALIFICATIONS  FOR  OFFICE. 

The  federal  Constitution  has  declared  that  "no  religious  test 
shall  ever  be  required  as  a  qualification  to  any  oflBce  or  public  trust 
under  the  United  States."  That  provision  undoubtedly  was  in- 
serted for  the  same  reasons  which  led  to  the  insertion  of  the  some- 
what similar  one  of  our  state  constitution,  and  now  under  dis- 
cussion. Its  meaning  has  not  been  judicially  stated  that  I  am 
aware  of,  but  we  have  the  opinion  of  Mr.  Justice  Story  that  it  was 
aimed  to  prevent  the  tests  prescribed  by  such  English  statutes  as  I 
have  above  referred  to.     2  Story  on  Const.  Sees.  1847,  1849. 

In  this  case  we  simply  hold  that  the  imposing  of  a  test  by  means 
of  which  to  secure  the  qualifications  of  a  candidate  for  an  ap- 
pointive office,  of  a  nature  to  enable  him  to  properly  and  intelli- 
gently perform  the  duties  of  such  office,  violates  no  provision  of 
our  constitution. 

Some  other  grounds  have  been  urged  for  a  reversal  of  this  judg- 
ment, but  after  a  careful  examination  of  them  we  think  they  are 
not  tenable  for  the  reasons  already  sufficiently  stated  in  the  opin- 
ions of  the  courts  below. 

The  judgment  herein  should  be  affirmed,  with  costs. 

All  concur,  Rugeb,  Ch.  J.,  in  result. 

Judgment  affirmed. 


,    II.    When  Qualifications  must  be  Present. 
SMITH  V.  MOORE. 

Supreme  Court  of  Judicature  of  Indiana.    May,  1883. 
90  Ind.  294. 

ZoLLARS,  J,  This  case  presents  for  decision  a  novel,  and  some- 
what difficult  question,  involving,  as  it  does,  the  proper  construc- 
tion and  application  of  section  16,  article  7,  of  the  state  con.<rti- 
tution. 

Upon  proper  request,  the  trial  court  made  a  special  finding  of 
facts. 

So  far  as  they  need  to  be  set  out  in  this  opinion  they  are  sub- 
stantially as  follows: 

At  the  general  election  in  1880,  appellee  was  duly  elected  for 
his  first  term,  treasurer  of  Benton  county  for  the  period  of  two 


SMITH  V.  MOORE.  209 

years,  from  and  after  August  15,  1881,  was  commissioned,  duly- 
qualified,  entered  upon  the  discharge  of  the  duties  of  the  office, 
and  was  so  serving  at  the  time  of  the  general  election  in  1882, 

At  this  last  election  appellant,  appellee,  and  one  Finly  were 
candidates  for  the  office  of  treasurer  of  Benton  county,  for  the 
term  of  two  years,  to  commence  on  August  15,  1883. 

Appellant  received  a  majority  of  all  the  votes  cast,  which  was 
duly  certified  by  the  proper  board  of  canvassers. 

At  the  April  election  in  1878,  appellant  was  elected  a  justice 
of  the  peace  in  and  for  York  township,  in  Benton  county,  for  the 
term  of  four  years,  commencing  on  the  29th  day  of  November, 
1878,  was  duly  commissioned,  qualified,  and  was  discharging  the 
duties  of  the  office  at  the  time  of  the  general  election  in  1882. 

At  the  April  election  in  said  York  township,  in  1882,  appellant, 
with  his  knowledge  and  consent,  was  voted  for,  for  the  office  of 
justice  of  the  peace  for  the  term  of  four  years,  commencing  on 
the  29th  day  of  November,  1882,  and  received  127  votes,  being 
the  whole  number  of  votes  cast  for  that  office. 

Proper  returns  were  made  of  this  election.  On  the  18th  day  of 
April,  the  Governor  issued  a  commission  to  appellant  as  such 
justice  for  a  term  of  four  years,  from  and  after  the  29th  day  of 
November,  1882. 

This  commission  was  forwarded  to  the  clerk  of  the  circuit  court, 
where  it  still  remains,  appellant  never  having  accepted  the  same, 
given  bond,  or  in  any  way  qualified  or  entered  upon  the  duties  of 
the  office  for  the  term  so  to  commence  on  November  29,  1882. 

On  the  27th  day  of  November,  1882,  appellant  notified  the  clerk 
in  writing  that  he  refused  to  accept  or  qualify  for  the  second 
term  as  justice  of  the  peace. 

The  court  below  found  as  conclusions  of  law  upon  these  facts: 

First.  That  on  the  7th  day  of  November,  1882,  appellee  was 
eligible  to  the  office  of  treasurer  of  Benton  county,  for  the  term 
to  commence  on  the  15th  day  of  August,  1883, 

Second.  That  appellant  on  November  7,  1882,  was  not  ineligible 
to  election  to  said  office  of  treasurer  for  the  term  to  commence  on 
the  15th  day  of  August,  1883,  by  reason  of  his  first  election,  com- 
mission and  qualification  as  such  justice  of  the  peace  from  Novem- 
ber 29th,  1878,  to  November  29th,  1882. 

Third.  That  appellant  was  ineligible  to  election  on  November 
7th,  1882,  to  the  office  of  county  treasurer,  for  the  term  com- 
mencing August  15th,  1883,  by  reason  of  his  second  election  as 
14 


210  QUALIFICATIONS  FOR  OFFICE. 

Buch  justice  of  the  peace  for  the  term  of  four  years,  from  Novem- 
ber 29th,  1882. 

Fourth.  That,  by  reason  of  appellant's  ineligibility,  api>ellee 
was  elected  and  entitled  to  the  office  of  treasurer  of  the  said 
county,  for  the  said  term,  commencing  on  the  15th  day  of  August, 
1883. 

Judgment  was  rendered  accordingly  declaring  appellee,  who 
was  the  contestor,  entitled  to  the  said  office  of  treasurer.  From 
this  judgment  appellant  prosecutes  this  appeal. 

The  section  of  the  constitution  above  referred  to  is  as  follows: 

"No  person  elected  to  any  judicial  office  shall,  during  the  term 
for  which  he  shall  have  been  elected,  be  eligible  to  any  office  of 
trust  or  profit  under  the  state,  other  than  a  judicial  office." 

Appellant  contends  that  the  ineligibility  refers  to  the  right 
and  fitness  to  be  inducted  into,  and  discharge  the  duties  of,  an 
office  other  than  a  judicial  one,  and  that  the  term  elected  has 
reference  not  merely  to  receiving  a  majority  of  votes,  but  also 
the  acceptance  of  the  office. 

And  that,  hence,  although  appellant  may  have  been  ineligible 
on  the  day  of  election,  1882,  by  reason  of  his  term  of  office  as 
justice  not  having  expired,  yet,  the  ineligibility  was  removed  by 
the  expiration  of  that  term  on  the  29th  day  of  November,  1882, 
and  he  might  rightfully  and  legally  take  and  hold  the  office  of 
treasurer,  for  the  term  to  commence  in  August,  1883. 

And  that,  although  appellant  was,  by  the  proper  vote,  at  the 
April  election,  1882,  chosen  for  a  second  term  as  justice,  not  hav- 
ing filed  the  bond  or  taken  the  oath  required  by  law,  he  was  not 
by  such  election  rendered  ineligible  to  the  office  of  treasurer. 

On  the  other  hand,  it  is  contended  by  appellee  that  the  ineligi- 
bility has  reference  to  the  right  to  be  voted  for,  and  that  as  the 
term  for  which  appellant  had  been  elected  a  justice  of  the  peace 
in  1878  had  not  expired  on  the  day  of  election  in  November,  1882, 
all  of  the  votes  cast  for  him  counted  for  nothing,  and  that  the 
subsequent  expiration  of  said  term  did  not  render  him  eligible  to 
the  office  of  treasurer,  the  term  of  which  did  not  commence  until 
August,  1883.  And  further  that,  having,  with  his  knowledge  and 
consent  received  the  votes  for  the  office  of  justice  of  the  peace  in 
April,  1882,  and  having  received  a  majority  of  the  votes,  he  was 
elected,  and  thus  rendered  ineligible  for  four  years  to  hold  the 
office  of  county  treasurer,  although  he  declined  the  commission, 
and  refused  to  file  a  bond,  take  the  oath,  or  accept  the  office  of 
justice  of  the  peace. 


SMITH   V.   MOORE.  211 

These  conflicting  positions  are  maintained  with  much  learning 
and  ability  by  the  counsel  for  the  respective  parties. 

After  a  careful  and  full  examination,  we  have  reached  the  con- 
clusion that  the  position  of  appellant  is  the  correct  one  in  this 
ease,  and  that  the  court  below  erred  in  its  conclusions  of  law,  so 
far  as  they  relate  to  the  ineligibility  of  appellant. 

''Legally  qualified"  is  the  meaning  that  should  be  given  to  the 
word  eligible,  as  used  in  the  section  of  the  constitution  under  con- 
sideration. 

"Office"  has  been  defined  to  mean  public  employment,  and  in 
legal  meaning  to  be,  an  employment  on  behalf  of  government  in 
any  station  of  public  trust;  a  place  of  trust  by  virtue  of  which  a 
person  becomes  charged  with  the  performance  of  certain  public 
duties.  5.  Wait 's  Actions  and  Defenses,  p.  1  et  seg.,  and  authorities 
cited.  With  this  definition  of  the  words  "eligible"  and  "office," 
the  constitutional  provision  may  be  read  as  follows:  No  person 
elected  to  any  judicial  office  shall,  during  the  term  for  which  he 
shall  have  been  elected,  be  legally  qualified  to  be  employed  on 
behalf  of  government  in  any  station  of  public  trust,  other  than  a 
judicial  office.  In  other  words,  be  legally  qualified  as  an  officer,  to 
perform  the  duties  of  a  public  officer,  other  than  judicial. 

This  interpretation  disposes  of  one  branch  of  the  case,  viz.,  the 
alleged  ineligibility  of  appellant  on  account  of  his  term  as  justice, 
which  expired  on  the  29th  day  of  November,  1882,  more  than  eight 
months  before  the  beginning  of  the  term  of  office  as  county  treas- 
urer, for  which  he  received  a  majority  of  the  votes  at  the  Novem- 
ber election,  in  1882. 

When  appellant  entered  upon  his  term  as  justice  of  the  peace 
on  the  29th  day  of  November,  1878,  he  became,  during  the  con- 
tinuance of  that  term,  disqualified  to  hold  and  perform  the  duties 
of  any  public  office,  except  a  judicial  one.  But  while  he  could  not, 
during  that  term,  hold  or  perform  the  duties  of  a  public  office, 
other  than  judicial,  it  does  not  follow  that  he  might  not,  during 
that  term,  be  legally  voted  for  and  chosen  to  an  office,  the  term  of 
which  would  not  begin  until  after  the  expiration  of  the  judicial 
term  as  justice.     Suppose  that  the  judicial  term  had  ended  on 

the  8th  day  of  November,  1882 could  it  be  said  with 

reason  that  appellant  might  not  have  been  voted  for,  and  legally 
chosen  to  the  office  of  county  treasurer  for  a  term  to  begin  in 
August,  1883?  If  so,  then  the  office  of  justice  of  the  peace  dis- 
qualified him  from  holding  and  performing  the  duties  of  that 
office,  not  only  during  the  term  for  which  he  was  elected  a  justice 


212  QUALIFICATIONS  FOE  OFFICE. 

of  the  peace,  but  for  almost  two  years  after  the  expiration  of  that 
term.  Such  a  construction  would  make  the  constitution  read  that 
no  person  elected  a  justice  of  the  peace  shall,  during  the  term  for 
which  he  shall  have  been  elected,  be  eligible  to  be  voted  for  for 
any  office,  except  a  judicial  one.  Such  a  construction,  we  think, 
is  not  compatible  with  sound  reason  nor  a  proper  interpretation 
of  the  constitution. 

We  are  cited  by  appellee's  counsel  to  a  number  of  authorities, 
which,  they  contend,  support  their  interpretation  of  the  constitu- 
tional provision.  The  questions  for  decision  in  the  case  at  bar  are 
before  this  court  for  the  first  time,  and  hence,  so  far  as  this  court 
is  concerned,  we  are  upon  untrodden  ground.  Isolated  expres- 
sions are  found  in  some  of  the  earlier  cases,  but  they  will  be 
found  to  be  purely  dicta,  so  far  as  they  in  any  way  bear  upon 
the  questions  in  this  case.  They  were  not  necessary  to  the  deci- 
sion of  the  questions  before  the  court,  and  were  evidently  made 
without  any  thought  of  deciding  or  intimating  a  decision  of  the 
questions  here  involved. 

Section  2,  article  6,  of  the  state  constitution,  provides  that  no 
person  shall  be  eligible  to  the  office  of  clerk  more  than  eight  years 
in  any  period  of  twelve.  Here  the  phrase  "eligible  to  office"  has 
reference  to  the  qualification  to  hold  the  office,  and  not  to  the 
election;  hence  it  has  been  held  that  while  a  person  might  prop- 
erly be  elected,  he  could  not  hold  beyond  the  eight  years.  Carson 
V.  McPhetridge,  15  Ind.  327.'  And,  so,  "eligible  to  any  office," 
as  used  in  the  section  of  the  constitution  under  consideration  in 
this  cause,  has  reference  to  the  qualification  to  hold  office,  and  not 
to  the  choosing  or  election  to  such  office. 

We  conclude,  therefore,  that  the  term  for  which  appellant  was 
elected  a  justice  of  the  peace  in  1878,  having  expired  on  the  29th 
day  of  November,  1882,  he  was  and  is  qualified  to  hold  the  office 
of  county  treasurer,  the  term  of  which  commenced  on  the  15th 
day  of  August,  1883,  and  that,  having  received  a  majority  of  the 
votes  for  such  office  at  the  general  election  in  1882,  he  is  entitled 
to  the  office. 

It  is  insisted,  however,  that  the  court  below  so  decided,  that  ap- 
pellant is  disqualified  for  the  office  of  county  treasurer  because, 
at  the  spring  election  in  his  township  in  1882,  he  was  voted  for, 
and  received  a  majority  of  the  votes  for  the  office  of  justice  of 
the  peace,  the  terra  to  begin  on  the  29th  day  of  November,  1882. 
although  he  did  not  accept  the  commission,  file  a  bond,  take  the 


SMITH    V.    MOORE.  213 

oath,  or  in  any  way  accept  such  office,  but  declined  it.    We  cannot 

adopt  this  view As  we  have  seen,  the  provision   of  the 

Constitution  under  consideration  provides  that  **No  person  elected 
to  any  judicial  office  shall,  during  the  term  for  which  he  shall 
have  been  elected,  be  eligible  to  any  office,"  etc. 

The  language  of  the  section  is  not,  that  a  party  shall  be  ineligi- 
ble during  the  time  for  which  he  shall  have  been  elected,  but  dur- 
ing the  term  for  which  he  shall  have  been  elected.  This,  we 
think,  implies  that  there  shall  be  a  term  by  which  the  ineligibility 
shall  be  measured,  and  that  the  term  in  contemplation  begins,  and 
can  only  begin,  with  the  acceptance  of  the  office  by  proper  quali- 
fication. It  is  contended,  on  one  side,  that  the  purpose  of  the 
convention  in  the  adoption  of  this  provision  was  to  insure  a  stable 
judiciary;  that  by  thus  rendering  the  judges  ineligible,  the  result 
is  to  keep  them  in  their  places  during  the  term  for  which  they 
may  have  been  elected.  On  the  other  side,  it  is  insisted  that  the 
purpose  was  to  keep  the  judges  of  the  courts  free  from  political 
alliance,  and  prevent  them  using  their  positions  as  a  means  of 
acquiring  other  offices.  Judging  from  the  debate  we  might  con- 
clude that  the  convention  had  both  objects  in  view.  However 
that  may  be,  the  section,  without  a  doubt,  was  meant  to  apply  to 
judges  in  office,  and  not  to  persons  who  may  be  chosen  simply, 
but  never  qualify  or  enter  upon  the  discharge  of  official  duties. 
In  order,  then,  to  carry  out  the  purpose  and  full  intent  of  the 
section,  the  word  "elected,"  used  therein,  cannot  be  taken  in  the 
narrow  sense  contended  for  by  appellee,  but  must  be  construed 
to  include,  not  only  being  chosen  to,  but  an  acceptance  of,  the 
office. 

Let  us  suppose  that  A  and  B  are  rival  aspirants  for  an  office 
not  judicial.  In  order  to  render  B  ineligible  to  that  office  and 
thus  to  dispose  of  him  as  such  rival,  A  procures  the  voters  of  B's 
township  to  vote  for  him  for  the  office  of  justice  of  the  peace. 
Having  received  a  majority  of  the  votes,  A  contends  that  B  is 
elected  to  that  office,  and,  without  accepting  or  qualifying,  is  ren- 
dered ineligible  to  the  other  for  the  period  of  four  years.  Such 
a  contention  on  the  part  of  A  would  strike  the  common  under- 
standing as  entirely  untenable  and  unreasonable.  Nor  could  it 
make  any  difference  whether  such  election  might  be  with  the 
knowledge  and  consent  of  B  or  without  his  knowledge. 

An  office  is  not  obtained  or  held  by  contract.  McCrary  on  Elec- 
tion, 216;  Pomeroy  Const.  Law,  see.  547.  It  cannot  be  said,  with 
reason,  that  such  consent  to  be  voted  for  is  in  any  sense  an  ac- 


214  QUALIFICATIONS  FOB  OFFICE. 

ceptance  of  the  office.  Until  the  consenting  party  is  known  to 
have  received  a  majority  vote  there  is  nothing  for  him  to  accept. 
If  being  voted  for  and  received  a  majority  of  the  votes  is  an 
election,  in  the  sense  in  which  the  word  "elected"  is  used  in  this 
section  of  the  constitution,  it  can  make  no  difference  whether  such 
votes  are  cast  with  or  without  the  knowledge  and  consent  of  the 
party  voted  for.  To  say  that  if  the  votes  are  cast  with  the  knowl- 
edge  and  consent  of  the  party  voted  for,  he  is  thereby  elected, 
and  if,  without  such  knowledge,  he  is  not  elected,  is  to  depart 
from  the  literal  signification  of  the  word  "elected,"^  as  contended 
for  by  appellee.  To  adopt  this  view,  it  would  become  necessary  to 
construe  the  word  "elected",  and  make  the  constitution  read:  No 
person  elected,  with  his  knowledge  and  consent,  to  a  judicial  office, 
shall  be  eligible,  etc.  And  further,  it  would  impose  upon  the  courts, 
in  every  case  of  contest  like  this,  under  this  section,  the  unreason- 
able and  difficult  duty  of  deciding  whether  or  not  the  party  thus 
elected  was  voted  for,  with  his  knowledge  and  consent.  Other 
questions  are  argued  by  counsel,  but  it  will  not  be  necessary  for  ns 
to  consider  them. 

Without  further  extending  this  opinion,  we  hold  that  appellant 
was  eligible  to  the  office  of  county  treasurer  to  which  he  was 
chosen,  is  entitled  to  it,  and  that  the  court  below  erred  in  its  con- 
clusions of  law.  The  judgment  of  the  trial  court  is,  therefore,  in 
all  things  reversed,  at  the  costs  of  appellee,  and  the  cause  remanded, 
with  instructions  to  that  court  to  make  its  conclusions  of  law,  and 
render  judgment  in  accordance  with  this  opinion. 

Hammond,  J.,  was  absent  during  the  consideration  of  this  cause. 

Dissenting  opinion  by  Elliott,  J. 

There  is  conflict  on  this  point,  quite  a  number  of  cases  holding  that 
qualifications  for  elective  offices  must  be  present  at  the  time  of  election. 
See  Searcy  v.  Grow,  14  Cal.  til;  Parker  v.  Smith,  3  Minn.  240;  State  v. 
McMiUen,  23  Neb.  385. 


\  ATTORNEY    GENERAL   V.    MARSTON.  215 

\ 

III.    Disqualification. 

ATTORNEY-GENERAL  V.  MARSTON. 

Supreme  Court  of  New  Hampshire.    June,  1891. 
66  N.  H.  485. 

Quo  warranto,  to  determine  the  defendant's  title  to  the  office 
of  selectman  of  Durham.  The  defendant  having  held  the  office 
of  tax-collector  of  Durham  in  1888  and  1889,  and  being  re-elected 
at  the  annual  meeting  in  March,  1890,  took  the  official  oath  and 
served  for  the  political  year.  For  the  present  year  no  successor 
was  elected,  and  T.  W.  Schoonmaker  being  appointed,  was  sworn, 
and  is  collector.  At  the  annual  meeting  in  March,  1891,  the  de- 
fendant was  elected  selectman  and  being  sworn,  he  is  serving  in 
that  office.  On  the  tax  lists  of  1888  and  1889  there  are  uncollected 
taxes  amounting  to  about  $169,  and  on  the  lists  of  1890  about  $200. 
Since  the  last  March  meeting  the  other  selectmen  requested  a  list  of 
these  uncollected  taxes,  and  he  furnished  it ;  and  in  an  examination 
made  of  it  by  the  board,  he  told  his  associates  that  he  thought  some 
of  the  taxes  of  1890,  amounting  to  $61.95,  could  not  be  collected, 
and  would  probably  have  to  be  abated.  He  has  not  resigned  the 
office  of  collector  unless  his  acceptance  of  the  office  of  selectman 
is  a  resignation,  and  his  liability  in  respect  to  the  uncollected 
taxes  of  the  three  years  has  not  been  discharged  or  adjusted. 

Clark,  J.  ''Neither  the  treasurer  nor  the  collector  of  taxes  shall 
be  a  member  of  the  board  of  selectmen."  G.  L.,  c.  40,  s.  5.  The 
duties  of  the  offices  of  collector  and  selectman  are  in  some  respects 
conflicting.  The  collector  is  required  to  give  a  bond  to  the  ac- 
ceptance of  the  town  or  selectmen.  G.  L.,  c.  42,  s.  4.  The  select- 
men may  remove  a  collector  for  certain  causes.  G.  L.,  c.  42,  s.  9. 
And  in  certain  cases  they  have  power  to  issue  an  extent  against  him. 
G.  L.  c.  66,  s.  5.  And  it  is  the  duty  of  the  selectmen  acting  in  be- 
half of  the  town,  to  see  that  the  collector  faithfully  performs  his 
official  duties,  and  in  default  to  take  measures  to  protect  the  in- 
terests of  the  town. 

The  defendant  having  been  elected  and  having  served  as  col- 
lector for  the  years  1888,  1889  and  1890,  and  still  retaining  his 
warrants  and  lists,  upon  which  are  uncollected  taxes,  is  still  col- 
lector for  those  years.  "Every  collector,  in  the  collection  of  taxes 
committed  to  him  to  collect,  and  in  the  service  of  his  warrant,  shall 
have  the  powers  vested  in  constables  in  the  service  of  civil  process. 


216  QUALIFICATIONS  FOR  OFFICE. 

which  shall  continue  until  all  the  taxes  in  his  list  are  collected." 
G.  L,,  c.  58,  s.  1. 

The  defendant's  acceptance  of  the  office  of  selectman  did  not 
relieve  him  from  the  office  of  collector.  The  acceptance  of  an  office 
by  one  disqualified  to  hold  it  by  reason  of  holding  an  incompatible 
office  is  not  necessarily  a  resignation  of  the  prior  office,  unless  it 
is  made  so  by  special  statutory  or  constitutional  provision.  Const. 
Part  2,  arts.  94,  95.  The  defendant's  resignation  would  not  divest 
him  of  the  office  of  collector  unless  it  was  accepted.  G.  L.,  c.  42, 
s.  1,  provides  that  in  case  any  officer  who  has  given  an  official  bond 
shall  resign,  he  and  his  sureties  shall  continue  liable  upon  his  bonds 
for  all  acts  under  color  of  his  office  until  he  shall  resign,  and  his 
resignation  shall  have  been  accepted  by  the  town,  selectmen,  or 
others  competent  to  accept  the  same. 

The  defendant  being  a  collector  of  taxes  for  the  town  of  Durham 
when  he  was  elected  a  selectman,  was  disqualified  to  hold  the  office, 
and  his  election  gives  him  no  title  to  it.  Cotton  v.  Phillips,  56  N. 
H.,  220,  223. 

Having  assumed  the  office  of  selectman  under  color  of  an  election, 
Marston  is  an  officer  de  facto,  and  his  official  acts  are  valid  as  to 
third  persons. 

Judgment  of  ouster. 

Doe,  C.  J.,  did  not  sit:  the  others  concurred. 


PEOPLE  EX  REL.     RYAN  V.  GREEN. 

Court  of  Appeals  of  New   York.     September,  1874. 
58  N.  Y.  295. 

Appeal  from  order  of  the  General  Term  of  the  Court  of  Com- 
mon Pleas  for  the  city  and  county  of  New  York,  affirming  an  order 
of  special  term  directing  a  writ  of  peremptory  mandamus  to  issue. 

An  alternative  writ  was  issued  alleging,  in  substance,  that  the 
relator  was,  on  or  about  May  1st,  1870,  duly  appointed  deputy 
clerk  of  the  Court  of  Special  Sessions  for  the  city  and  county  of 
New  York  at  a  salary,  as  fixed  by  law,  of  $5,000  per  annum,  which 
office  he  has  continued  to  hold  and  still  holds;  that  he  presented 
his  claim  for  salary  for  the  months  of  February,  March,  April  and 
May,  1873,  to  the  defendant  which  the  latter  refused  to  pay. 


PEOPLE  EX  BEL.  RYAN  V.  GREEN.  217 

The  return  to  the  writ  simply  alleged  that,  subsequent  to  the 
appointment  of  relator,  in  the  year  1872,  he  was  duly  elected  a 
member  of  the  legislature,  which  office  he  accepted  and  entered  upon 
the  performance  of  its  duties,  and  was  engaged  in  such  performance, 
in  the  city  of  Albany,  during  the  months  of  February,  April  and 
May,  thus  rendering  it  impossible  to  perform  the  duties  of  the 
said  office  of  deputy  clerk  which  required  his  personal  presence  in 
the  city  of  New  York,  and  that  he  did  not  perform  the  duties  of 
the  latter  office  during  those  months. 

Upon  the  ^vrit  and  the  return  an  order  was  granted  directing  the 
issuing  of  a  peremptory  writ,  notwithstanding  the  return,  direct 
ing  the  payment  of  the  salary. 

FOLGER.  J. 

The  point  made  by  the  appellant,  that  section  114  of  the  last 
charter  of  the  city  o£  New  York  (Laws  of  1872,  chap.  335,  p  519) 
operates  to  vacate  the  office  of  deputy  clerk,  held  by  the  relator,  is 
not  tenable.  The  language  of  the  section  is  prospective.  A  law  may 
not  operate  upon  existing  rights  and  liabilities  without  it  in  terms 
expresses  such  intention.  Johnson  v.  Burrell,  2  Hill,  238.  Though 
there  is  no  vested  right  to  an  office,  which  may  not  be  disturbed  by 
legislation,  yet  the  incumbent  has,  in  a  sense,  a  right  to  his  office. 
If  that  right  is  to  be  taken  away  by  statute,  the  terms  should  be 
clear  in  which  the  purpose  is  stated.  This  section  is  quite  other- 
wise, if  it  has  such  purpose. 

Nor  is  the  office  of  a  member  of  assembly,  in  the  legal  sense  of  the 
word,  incompatible  with  that  of  deputy  clerk  of  the  Court  of 
Special  Sessions  of  the  city  and  county  of  New  York.  After  the 
exhaustive  opinions  delivered  in  the  court  below  upon  this  point,  it 
would  be  an  unwarrantable  use  of  time  to  go  over  the  ground  again, 
so  well  explored  in  them.  It  may  be  granted  that  it  was  phy- 
sically impossible  for  the  relator  to  be  present  in  his  seat  in  the  as- 
sembly chamber,  in  the  performance  of  his  duty  as  a  member  of 
that  body,  and  at  the  same  time  at  his  desk  in  the  court  doing  his 
duty  as  deputy  clerk  thereof.  But  it  is  clearly  shown  in  those 
opinions,  that  physical  impossibility  is  not  the  incompatibility  of  the 
common  law,  which  existing,  one  office  is  ipso  facto  vacated  by 
accepting  another.  Incompatibility  between  two  officers,  is  an 
inconsistency  in  the  functions  of  the  two ;  as  judge  and  clerk  of  the 
same  court-officer  who  presents  his  personal  account  subject  to 
audit,  and  officer  whose  duty  it  is  to  audit  it.  The  case  of  Bryant, 
4  T.  E.  715,  and  5  id.  509,  cited  by  appellant  does  not  conflict  with 


218  QUALIFICATIONS  FOB  OFFICE. 

this  view.  It  was  decided  upon  the  meaning  of  the  particular  stat- 
ute, which  required  the  personal  presence  of  the  officer  at  the  prison. 
Where  one  office  is  not  subordinate  to  the  other,  nor  the  relations  of 
the  one  to  the  other  such  as  are  inconsistent  and  repugnant,  there 
is  not  that  incompatibility  from  which  the  law  declares  that  the 
acceptance  of  the  one  is  the  vacation  of  the  other.  The  force  of  the 
word,  in  its  application  to  this  matter,  is,  that  from  the  nature  and 
the  relations  to  each  other,  of  the  two  places,  they  ought  not  to  be 
held  by  the  same  person,  from  the  contrariety  and  antagonism  which 
would  result  in  the  attempt  by  one  person  to  faithfully  and  im- 
partially discharge  the  duties  of  one,  toward  the  incumbent  of 
the  other.  Thus,  a  man  may  not  be  landlord  and  tenant  of  the  same 
premises.  He  may  be  landlord  of  one  farm  and  tenant  of  another, 
though  he  may  not  at  the  same  hour  be  able  to  do  the  duty  of  each 
relation.  The  offices  must  be  subordinate,  one  to  the  other,  and 
they  must,  per  se,  have  the  right  to  interfere,  one  with  the  other, 
before  they  are  incompatible  at  common  law.  For  the  authorities 
sustaining  these  views,  we  refer  to  the  opinions  in  the  court  below, 
■where  they  are  laboriously  collected. 

It  is  not  claimed  that  there  is  an  express  incompatibility  created 
by  the  constitution,  or  by  statute,  other  than  that  above  referred  to. 

The  appellant  makes  the  further  point,  that  the  alternative  writ 
makes  no  averment  that  the  account  of  the  relator  for  his  salary  has 
been  audited  by  the  board  of  supervisors  and  by  the  auditor  of  the 
finance  department,  and  that  the  proper  voucher  therefor  has 
been  examined  and  allowed  by  the  proper  officer  and  approved 
by  the  comptroller. 

We  are  of  opinion  that  the  lack  of  the  averments  in  the  al- 
ternative writ  is  fatal  to  the  relator's  application. 

It  follows,  that  the  order  appealed  from  must  be  reversed. 

All  concur. 

Order  reversed,  and  motion  for  peremptory  mandamus  denied. 


MORELAND  V.   COMMON  COUNCIL.  219 

ATTORNEY  GENERAL  EX.  REL.  MORELAND  V.  COMMON 
COUNCIL  OF  CITY  OF  DETROIT. 

Supreme  Court  of  Michigan.    March,  1897. 
112  Mich.  145. 

Mandamus  by  Fred  A.  Maynard,  Attorney  General,  on  the  rela- 
tion of  Dewitt  H.  Moreland,  to  compel  the  common  council  of  the 
city  of  Detroit  to  call  an  election  to  fill  a  vacancy  in  the  office  of 
mayor.    Submitted  March  17,  1897.    Writ  granted  March  19,  1897. 

Hooker,  J.  Hon.  Hazen  S.  Pingree  was  elected  mayor  of  the 
city  of  Detroit,  and  while  an  incumbent  of  that  office  was  elected 
to,  accepted  and  entered  upon  the  execution  of  the  duties  of  the 
office  of  governor.  He  continues  to  perform  the  functions  of  both, 
and  the  petition  in  this  proceeding  proceeds  upon  the  theory  that, 
by  accepting  the  latter  office,  that  of  mayor  has  become  vacant, 
and  a  writ  of  mandamus  is  asked  commanding  the  respondent  to 
call  an  election  to  fill  such  vacancy.  Two  theories  are  presented 
under  which  it  is  contended  that  Mr.  Pingree  cannot  hold  these 
two  offices  at  one  and  the  same  time: 

1.  That  he  is  prohibited  by  section  15  of  article  5  of  the  Con- 
stitution, which  says:  **No  member  of  Congress,  nor  any  person 
holding  office  under  the  United  States  or  this  State,  shall  execute 
the  office  of  governor. ' ' 

2,  That  the  two  offices  are  incompatible  under  the  rules  of  the 
common  law. 

Many  cases  have  arisen  upon  similar  provisions  of  the  various 
constitutions,  and,  while  the  decisions  are  not  altogether  uniform, 
we  shall  find  them  in  substantial  harmony  upon  two  propositions, 
viz. :  First,  that  an  officer  of  a  city,  whose  duties  are  simply  and 
purely  municipal,  and  who  has  no  function  pertaining  to  state 
affairs,  does  not  come  within  the  constitutional  description  of  of- 
ficers holding  office  under  the  State;  and,  second,  where  officers 
in  cities  are  appointed  or  elected  by  the  community  in  obedience 
to  laws  of  the  State  which  impose  duties  upon  them  in  relation  to 
State  affairs,  as  contra-distinguished  from  affairs  of  interest  to  the 
city  merely,  such  as  relate  to  gasworks,  sewers,  waterworks,  public 
lighting,  etc.,  they  are  upon  a  different  footing,  and  may  properly 
be  said  to  hold  office  under  the  State.  We  will  first  consider 
whether  this  distinction  is  a  proper  one  to  be  made  under  our  con- 
stitution, and  it  must  be  determined  upon  adjudicated  cases  else- 


220  QUALIFICATIONS  FOR  OFFICE. 

where,  and  such  lights  of  a  domestic  nature  as  our  own  decisions 
and  discussions  afford. 

There  are  cases  which  hold  that  a  similar  provision  is  to  be  ap- 
plied only  to  constitutional  oflBces,  and  it  is  contended  here  that, 
at  the  most,  the  provision  does  not  include  all  offices  that  are  held 
under  State  authority;  that  officers  elected  by  counties,  town- 
ships, school  districts,  etc.,  should  be  excluded. 

.  .  .  .  .  There  was  in  the  convention  no  apparent  dis- 
agreement as  to  the  proposition  that  section  8  of  article  4  of  the 
Constitution  1835  excluded  others  than  those  who  were  *  *  appointed 
directly  by  state  authority,"  nor  is  it  easy  to  perceive  why  there 
should  have  been.  In  the  same  instrument  (article  6,  section  6) 
it  was  provided  that  each  township  might  elect  four  justices  of  the 
peace.  It  is  perfectly  obvious,  therefore,  that  if  the  words  "office 
under  the  United  States  or  of  this  state"  were  given  a  construc- 
tion which  limited  them  to  **  officers  appointed  directly  by  state 
authority,"  the  exception,  in  the  same  section,  of  justices  of  the 
peace,  was  senseless;  and  as  the  words  are  susceptible  of  a  con- 
struction which  excluded  officers  mediately  holding  office  under 
authority  of  the  State,  and  administering  State  functions,  it  is  to 
be  assumed  that  they  were  employed  in  that  sense.  It  is  also  plainly 
inferable  that,  if  the  words  were  used  in  this  sense  in  the  section 
referred  to,  similar  words  were  used  in  a  like  sense  in  section  16, 
art.  5,  which  reads:  "No  member  of  Congress,  nor  any  other  per- 
son holding  office  under  the  United  States  or  this  State,  shall 
execute  the  office  of  governor," — a  provision  in  the  same  language 
as  is  employed  in  section  15,  art.  5,  of  our  present  Constitution. 

It  should,  perhaps,  be  stated  that  the  question  cannot  well  arise 
under  the  corresponding  provision  of  our  present  Constitution 
relative  to  the  qualifications  of  members  of  the  legislature  (article 
4,  section  6),  as  the  inhibition  contained  in  that  section,  as  appears 
by  the  Constitution,  actually  adopted  by  the  convention,  signed 
by  the  members  of  the  convention,  and  filed  in  the  office  of  the  secre- 
tary of  state,  does  not  apply  to  State  officers;  the  words  "or  this 
State"  having  been  omitted,  whether  intentionally  or  through  in- 
advertence it  is  impossible  to  say.  Certain  it  is  that  the  vote  adopt- 
ing the  Constitution  was  taken  upon  the  engrossed  copy,  as  ap- 
pears by  the  proceedings  of  the  convention  (page  918). 

In  California,  the  constitutional  provision  was  that  "no  per- 
son holding  any  lucrative  office  under  the  United  States,  or  any 
other  power,  shall  be  eligible  to  any  civil  office  of  profit  under 


MORELAND  V.   COMMON  COUNCIL.  221 

this  State,"  etc.  In  People  v.  Leonard,  73  Cal.  230,  the  office  of 
supervisor  of  a  district  was  held  to  be  prohibited. 

The  Indiana  constitution  prohibited  the  holding  by  one  person 
at  the  same  time  of  two  lucrative  offices  under  the  State,  and  was 
held  to  cover  the  office  of  county  commissioner  and  county  recorder. 
Daily  v.  State,  8  Blackf.  329.  In  Foltz  v.  Kerlin,  105  Ind.  221 
(55  Am.  Rep.  197),  a  township  trustee  was  held  to  be  within  the 
provision. 

In  Virginia  the  Code  provides  that  **no  person  shall  be  capable 
of  holding  any  office  of  profit,  trust,  or  emolument,  civil  or  military, 
legislative,  executive,  or  judicial,  under  the  government  of  this 
commonwealth, ' '  who  holds  certain  other  offices  enumerated.  Bunt- 
ing V.  WiUis,  27  Grat.  144  (21  Am.  Rep.  338),  and  Shell  v.  Cous- 
ins, 77  Va.  328,  involved  the  office  of  sheriff  which  is  a  county 
office,  and,  in  the  latter  case,  a  '/sampler  of  tobacco,"  in  the  city 
of  Petersburg.    These  offices  were  held  to  be  within  the  prohibitfon. 

Shelby  v.  Alcorn,  36  Miss.  273  (72  Am.  Dec.  169),  held,  under 
a  provision  prohibiting  the  appointment  of  a  senator  to  "any 
civil  office  under  the  State  which  shall  have  been  created  during 
his  term  as  senator,"  that  a  senator  was  not  eligible  to  the  office 
of  levee  commissioner  of  a  county. 

These  cases  proceed  upon  the  theory  that  all  officers  whose  duties 
are  prescribed  by  general  law,  however  trivial,  perform  their 
own  particular  portion  of  the  business  of  the  State.  The  levying 
and  collection  of  taxes  are  State  matters.  So  are  all  things  con- 
nected with  the  State  system  of  schools,  construction  and  main- 
tenance of  public  highways,  and  preservation  of  the  peace,  and 
these  cases  hold  the  generally  conceded  doctrine  that  all  who  have 
parts  to  perform  in  the  general  scheme  are  officers  holding  under 
the  State,  if  their  engagement  rises  to  the  dignity  of  an  office,  rather 
than  a  mere  employment. 

The  next  distinction  made  relates  to  municipal  offices,  and  it 
is  said  that  officers  elected  in  cities  are  not  to  be  classified  with 
county  and  township  officers,  and  cannot  be  said  to  hold  office 
under  the  State ;  that  such  offices  are  held  under  the  city.  .  .  . 
At  this  point  it  is  said  that  we  must  draw  the  line;  that  when  we 
pass  the  confines  of  the  smallest  village  or  the  largest  city  the  sec- 
tion does  not  apply.  Such  localities  are  parts  of  the  State;  State 
laws  are  in  force  within  such  territory,  and  the  various  officers 
have  to  perform  many  functions  pertaining  to  State  as  contra- 
distinguished from  city  affairs.    The  State  revenues  have  to  be  lev- 


222  QUALIFICATIONS  FOR  OFFICE. 

ied,  collected,  and  paid  over  by  them  through  county  officers,  the 
same  as  in  the  township;  highways  have  to  be  provided,  repaired, 
and  maintained;  schools  in  substantial  harmony  with  the  State 
school  system  must  be  maintained,  which  are  in  part  supported  by 
the  State  school  funds;  the  criminal  laws  are  enforced  through 
justices'  and  other  courts,  constables,  marshals,  police  officers,  etc.; 
some  officer  in  these  localities  has  the  custody  of  securities  for  debt, 
as  does  the  township  clerk ;  the  council  takes  the  place  of  the  town- 
ship board  in  the  management  of  local  affairs;  elections  for  State, 
county,  and  local  officers  are  in  charge  of  city  and  village  officers; 
and  it  is  obvious  that  the  volume  of  State  business  in  a  busy  city  is 
much  greater  and  more  complicated  and  important  than  in  a  rural 
township.  Still  it  is  urged  that  the  constitution  makers  had  no 
intention  of  excluding  occupants  of  municipal  officers  from  execut- 
ing the  office  of  governor,  while  at  the  same  time  they  prohibit  in- 
cumbents of  the  office  of  county  overseer  cf  highways,  school  in- 
spector, or  even  notary  public  from  performing  the  duties  of  gov- 
ernor. 

It  would  seem  manifest  that,  if  the  contention  of  counsel  for  the 
respondent  is  correct,  it  must  be  based  upon  some  other  reason  than 
a  lack  of  interest  on  the  part  of  the  State  in  the  performance  of 
their  duties  by  city  officers.  We  do  not  recall  a  reason  that  has 
been  given  that  will  serve  to  explain  satisfactorily  why  the  mayor 
of  a  city  should  be  permitted  to  execute  the  office  of  governor,  when 
the  incumbent  of  the  lowest  office  in  a  township  or  a  post-office 
at  crossroads  is  prohibited.  But  plain  as  this  may  seem  to  be, 
there  are  cases  which  make  a  distinction  between  State  and  muni- 
cipal offices. 

The  matter  is  summed  up  in  Chambers  v.  State,  127  Ind.  365,  and 
the  distinction  shown  to  be  generally  recognized  is  clearly  drawn. 
After  discussing  the  various  cases,  the  court  continues: 

**It  must,  therefore,  be  regarded  as  the  settled  law  of  this  State 
that  if  an  office  is  purely  municipal,  the  officer  not  being  charged 
with  any  duties  under  the  laws  of  the  State,  he  is  not  an  'officer' 
within  the  meaning  of  the  Constitution ;  but  if  the  officer  be  charged 
with  any  duties  under  the  laws  of  the  State,  and  for  which  he  is 
entitled  to  compensation,  the  office  is  a  'lucrative  office',  within 
the  meaning  of  the  constitution." 

The  recent  case  of  Montgomery  v.  State  (decided  at  the  Novem- 
ber, 1894,  term  of  the  Supreme  Court  of  Alabama),  107  Ala.  372, 
contains  the  latest  view  of  this  subject  that  we  have  met.     The 


MORELAND  V.   COMMON  COUNCIL.  223 

provision  of  the  Constitution  is  as  follows:  "No  senator  or  rep- 
resentative shall,  during  the  term  for  which  he  shall  have  been 
elected,  be  appointed  to  any  civil  office  of  profit  under  this  state 
which  shall  have  been  created  or  the  emoluments  of  which  shall 
have  been  increased,  during  such  term,  except  such  offices  as  may 
be  filled  by  election  of  the  people. ' '  The  office  was  that  of  judge  of 
the  police  court  of  a  city.  The  court  quoted  copiously  from  some  of 
the  cases  hereinbefore  cited,  andTield  the  office  to  be  prohibited. 

It  yet  remains  to  determine  whether  the  office  of  mayor  of  De- 
troit has  state  functions,  and,  when  the  provisions  of  law  bearing 
upon  that  question  shall  have  been  collected,  it  will  leave  no  room 
for  doubt.  By  the  charter  (Act.  No.  326,  Local  Acts  1883,  chap. 
5,  sec.  1),  the  mayor  is  made  a  conservator  of  the  peace,  which, 
as  has  already  been  said,  imposes  a  State  duty,  which  he  holds  in 
common  with  all  magistrates.  2  How.  Stat.  Sec.  9264,  imposes 
similar  duties. 

Again,  section  9435  authorizes  the  mayors  of  all  cities  to  re- 
quire persons  to  give  security  to  keep  the  peace,  and  section  9454 
et  seq.  authorizes  them  to  conduct  examinations  of  persons  charged 
with  crime,  and  commit  them  to  jail,  or  require  a  recognizance  for 
appearance  at  the  circuit  court  for  trial.  Again,  section  9479  auth- 
orizes mayors  to  admit  persons  charged  with  crime  to  bail.  Section 
9385  commands  mayors  to  issue  proclamations  requiring  saloons  to 
be  closed  upon  election  days,  and  again  emphasizes  the  State  char- 
acter of  this  requirement  by  making  a  violation  of  the  section  a 
misdemeanor,  punishable  by  fine  and  imprisonment.  Again,  under 
1  How.  Stat.  Sec.  911,  in  cases  of  riot,  breach  of  the  peace,  tumults, 
or  violent  resistance  of  any  process  of  this  State,  it  is  within  the 
power  of  the  mayor  to  call  upon  the  commanding  officer  for  aid 
from  State  troops;  and  section  913  provides  a  punishment  for 
officers  who  refuse  to  comply  with  the  request.  Again,  mayors  are 
made  members  of  the  boards  of  health.  Section  1681.  See,  also, 
section  42,  chap.  7,  of  the  charter  for  authority  of  the  council  in 
relation  to  the  preservation  of  the  public  health  and  section  38  for 
authority  as  to  drainage.  And  see  Act  No.  36,  Local  Acts  1883, 
which  authorizes  the  mayor  to  nominate  persons  to  fill  vacancies 
upon  the  school  board.  This  is  under  a  general  law,  as  is  his  veto 
power  given  by  Act  No.  394,  Local  Acts  1893,  which  was  held  con- 
stitutional in  Pingree  v.  Board  of  Education,  99  Mich.  404.  Again, 
the  mayor  may  administer  oaths  (section  14,  chap.  5,  of  the  char- 


224  QUALIFICATICNS  FOR  OFFICE. 

ter) ;  and,  under  section  15,  may  hear  complaints  and  annul  or  sus- 
pend licenses  for  violations  of  the  ordinances,  or  any  other  law 
of  the  State.  Other  duties  pertaining  to  state  affairs  might  be 
mentioned,  but  these  are  perhaps  the  most  significant,  and  are  am- 
ple to  show  that  the  mayor  of  Detroit  holds  office  under  this 
state;  and  we  think  it  beyond  reasonable  contention  that  this  office 
is  within  article  5,  sec.  15,  prohibiting  the  execution  of  the  office 
of  governor  by  one  holding  it. 

Are  the  offices  of  mayor  of  the  city  of  Detroit  and  the  governor 
of  the  State  incompatible  under  the  common-law  rules?  It  is  the 
universal  rule  that  when  such  incompatibility  exists,  the  acceptance 
of  the  latter  office  vacates  the  first.  State  v.  Goff,  15  R.  I.  505  (2 
Am.  St.  Rep.  921,  and  authorities  cited.)  The  authorities  are  in 
substantial  agreement  as  to  the  rule  of  incompatibility,  and 
Mechem  states  it  as  follows :  ' '  The  incompatibility  which  shall  op- 
erate to  vacate  the  first  office  exists  where  the  nature  and  duties  of 
the  two  offices  are  such  as  to  render  it  improper,  from  considerations 
of  public  policy,  for  one  person  to  retain  both."  Mechem,  Pub. 
Off.  Sec.  422. 

The  sole  difficulty  lies  in  the  application  of  the  rule,  and  in  every 
case  the  question  must  be  determined  from  an  ascertainment  of 
the  duties  imposed  by  law  upon  the  two  officers.  If  one  has  super- 
vision over  the  other,  or  if  one  has  the  remo\al  of  the  other,  the 
incongruity  of  one  person  holding  both  offices  is  apparent,  and 
the  incompatibility  must  be  held  to  exist  so  that  the  acceptance 
of  the  latter  vacates  the  former.  We  have  already  referred  to 
the  provisions  of  the  charter  and  the  statute  laws  imposing  duties 
upon  the  mayor.  For  the  violation  of  some  if  not  all  of  these, 
he  might  be  removed  from  office  by  the  governor  under  the 
statute  hereinafter  cited.  Section  653,  1  How.  Stat.,  provides  that 
"the  governor  may  remove  all  county  officers  chosen  by  the  electors 
of  any  county  or  appointed  by  him,  and  shall  also  remove  all 
justices  of  the  peace  and  township  officers  chosen  by  the  electors 
of  any  township,  or  city  or  village  officers  chosen  by  the  electors 
of  any  city  or  village,"  etc. 

If  a  superior  officer  is  clothed  with  power  to  remove  from  office 
an  inferior  officer,  there  is  certainly  no  logic  or  reason  in  holding 
that  one  person  may  hold  both.  No  more  marked  incompatibility 
is  possible. 

The  remoteness  of  the  necessity  for  the  removal  of  a  mayor  by 


MORELAND  V.   COMMON   COUNCIL.  225 

the  governor  is  urged  by  counsel  for  the  respondent  as  a  reason 
why  a  legal  incompatibility  does  not  exist  at  common  law.  The 
question,  however,  is  one  of  the  existence  of  the  power,  and  not 
the  remoteness  of  its  exercise. 

The  power  of  removal  is  ever  present,  ready  for  use  when  its 
exercise  is  required.  The  argument  that  the  contingency  for  its 
use  is  very  remote  is  without  force.  We  have  been  unable  to  find  a 
decision  which  holds  that  one  person  may  hold  two  offices,  in  one  of 
which  he  is  clothed  with  power  to  remove  the  person  holding  the 
other.  It  follows  that  the  offices  of  mayor  and  governor  are 
incompatible. 

In  the  course  of  these  proceedings,  reference  has  been  made,  on 
behalf  of  respondent,  to  the  alleged  fact  that  Mr.  Pingree  was 
elected  to  the  office  of  governor  after  a  public  declaration  of  an 
intention  to  continue  to  perform  the  duties  of  the  office  of  mayor, 
and  it  is  intimated  that  a  result  which  ousts  him  from  the  office 
of  mayor  will  have  the  effect  to  disfranchise  the  people,  and  that 
such  a  result  is  fraught  with  dangerous  consequences.  Were  it  not 
for  the  eminence  of  counsel  who  present  these  considerations  to 
this  court,  we  should  hesitate  about  adverting  to  such  elementary 
principles  as  furnish  an  answer  to  these  suggestions  and  demon- 
strate their  impropriety  as  well.  Even  the  power  of  majorities  may 
be,  and  often  is  restrained,  by  the  written  Constitution ;  and  where 
the  majority  assumes  to  do  what  is  forbidden,  or  to  do  what  is  per- 
mitted in  a  mode  forbidden  by  the  Constitution,  the  duty  of  the 
court  to  protect  the  rights  of  minorities  is  too  manifest  to  re- 
quire at  this  day,  either  apology  for  its  exercise  or  an  elucidation  of 
its  source  of  authority.  If,  in  law,  the  effect  of  the  election  of 
Mr.  Pingree  to,  and  his  acceptance  of,  the  office  of  governor  oper- 
ated to  vacate  the  office  of  mayor,  a  court  that  would  weigh  ma- 
jorities before  so  declaring  would  deserve  impeachment  and  the 
contumely  which  would  follow. 

We  have  yet  to  consider  the  effect  of  the  attempt  to  execute 
both  offices.  Mr.  Pingree  has  taken  the  constitutional  oath,  and  is 
in  possession  of  the  office  of  governor,  and  performing  its  duties. 
The  section  of  the  Constitution  renders  the  two  offices  incompati- 
ble, as  does  the  rule  of  the  common  law  already  discussed ;  and  the 
general  rule  that  the  acceptance  of  a  second  vacates  the  first  of 
two  offices  that  are  incompatible  is  not  only  the  rule  of  the  common 
law,  but  is  held  to  apply  to  incompatibility  growing  out  of  con- 
stitutional provisions  in  several  of  the  cases  hereinbefore  cited.  See 
15 


226  QU.VLIFICATIONS  FOR  OFFICE. 

People  V.  Sanderson,  30  Cal.  160,  167;  People  v.  Provines,  34  Cal. 
520,  541;  Foltz  v.  Kerlin,  105  Ind.  221  (55  Am.  Rep.  197) ;  DaUy 
V.  State,  8  Blackf .  329 ;  Shell  v.  Cousins,  77  Va.  328 ;  also  North- 
way  V.  Sheridan,  111  Mich.  18. 

From  what  is  said,  it  is  obvious  that  the  respondent  should  not 
have  refused  to  call  an  election,  and,  in  view  of  the  fact  that  an 
election  is  to  be  held  in  Detroit  on  the  5th  day  of  April  next,  it 
is  desirable,  upon  the  ground  of  economy,  that  this  vacancy  be 
filled  at  that  time,  if  it  can  be  legally  done.  Counsel  seem  to  agree 
that  seven  days'  notice  of  the  special  election  to  fill  this  vacancy 
is  sufficient,  and  there  is  ample  time  to  nominate  candidates  at 
conventions  which  have  been  already  or  can  yet  be  called.  It  is 
conceded  by  counsel  for  the  respondent  that  primaries  for  a  spe- 
cial election  may  be  held  after  the  time  specified  in  Act  No.  411, 
Local  Acts  1895,  if  there  be  time  to  print  the  ballots.  We  are  there- 
fore of  the  opinion  that  the  election  can  be  lawfully  held  at  that 
time. 

The  writ  will  be  granted  as  prayed,  requiring  the  respondent  to 
take  all  necessary  steps  to  hold  such  election  at  the  time  named. 

The  other  Justices  concurred. 


DETURK  V.  COMMONWEALTH. 

Supreme  Court  of  Pennsylvania.    November,  1889. 
129  Pa.  St.  151, 

Green,  J 

The  respondent  in  the  case,  being  the  postmaster  of  DeTurkville, 
in  the  township  of  Washington,  was  elected  in  the  fall  of  1887  a 
county  commissioner ;  and  having  been  duly  sworn  in,  has  occupied 
and  filled  the  office  of  county  commissioner  since  January,  1888. 
At  the  instance  of  E.  W.  Frehafer,  the  district  attorney  has  in- 
stituted the  proceeding  by  quo  warranto,  to  try  the  right  of  the 
respondent  to  hold  the  office  of  county  commissioner,  on  the 
ground  that  by  the  constitution  he  cannot  be  postmaster  and  com- 
missioner at  one  and  the  same  time.  Prior  to  the  filing  of  an 
answer  by  the  respondent,  he  resigned  his  office  as  postmaster, 
which  resignation  was  duly  accepted  by  the  proper  authorities. 
These  are  the  facts  in  the  case  and  they  are  not  disputed. 


DETURK  V.   COMMONWEALTH.  227 

The  second  section  of  article  XII  of  the  Constitution  of  Penn- 
sylvania, provides  that  "no  member  of  Congress  from  this  State 
nor  any  person  holding  or  exercising  any  office  or  appointment 
of  trust  or  profit  under  the  United  States,  shall  at  the  same  time 
hold  or  exercise  any  office  in  this  state  to  which  a  salary,  fees,  or 
perquisites  shall  be  attached.  The  general  assembly  may  by  law 
declare  what  offices  are  incompatible." 

A  postmastership  under  the  United  States  is  undoubtedly  an 
office  of  profit,  for  the  law  provides  compensation  for  the  officer. 
In  the  present  case,  it  is  an  office  of  very  small  profit,  indeed,  for 
the  compensation  does  not  exceed  the  sum  of  thirty  dollars  an- 
nually ;  nevertheless  it  must  be  classed  as  an  office  of  profit.  The 
office  of  county  commissioner  is  one  to  which  a  salary  is  attached, 
the  law  providing  a  per  diem  pay  of  two  dollars  and  fifty  cents. 
Under  the  plain  reading  of  the  law  it  would  seem  clear  that  the 
respondent  cannot  be  both  postmaster  and  county  commissioner. 

When  the  present  case  was  before  the  court  it  was  argued  as 
though  the  main  question  was  one  of  the  incompatibility  of  offices, 
and  that  defendant  might  either  hold  both,  so  long  as  no  law  of  the 
state  declared  them  incompatible;  or,  if  they  were  incompatible 
per  se,  then  the  acceptance  of  the  second  office  raised  the  pre- 
sumption of  a  resignation  of  the  first,  and  that  the  act  of  May 
15,  1874,  P.  L.  186,  upon  the  subject,  did  not  declare  the  offices 
held  by  the  respondent  incompatible.  A  great  many  authorities 
both  English  and  American  were  cited  upon  the  questions  arising 
from  the  incompatibility  of  offices,  and  whilst  the  law  as  decided 
by  the  different  courts  seems  to  be  uniform  and  in  accordance  with 
the  contention  of  the  defendant,  yet  it  has  no  bearing  upon  the 
case  before  the  court.  It  is  not  a  question  of  incompatibility  or 
the  reverse.  It  is  simply  a  question  of  constitutional  prohibition. 
The  cases  have  therefore  no  relevancy  in  deciding  this  case. 

But  what  effect  does  the  resignation  of  the  respondent  as  post- 
master, and  its  acceptance  by  the  proper  authorities,  have  upon 
the  question  ?  Has  he  thereby  qualified  himself  to  hold  the  county 
office? 

It  is  true  he  was  disqualified  when  he  took  upon  himself  the 
duties  of  the  office  and  was  sworn  in,  and  also  when  the  writ  of 
quo  warranto  was  issued,  and  why  may  he  not  make  himself  compe- 
tent by  a  subsequent  resignation?     Having  put  himself  in  the 


228  QUALIFICATIONS  FOB  OFFICE. 

position  of  holding  only  one  office,  has  he  not  conformed  to  all 
that  the  constitution  requires,  that  he  shall  not  **at  the  same  time 
hold  or  exercise"  the  two  offices.  The  law  does  not  declare  him 
ineligible  because  he  held  the  office  under  the  general  government. 
It  merely  says  he  shall  not  hold  both  at  the  same  time.  If  this  ques- 
tion were  one  of  first  impression,  my  own  inclination  would  be 
to  hold  that  having  removed  the  disqualification,  he  could  retain 
the  state  office,  because  the  requirements  of  the  Constitution  would 
have  been  complied  with.  But  what  few  authorities  I  have  been 
able  to  gather,  seem  to  rule  that  the  disqualification  must  be  re- 
moved before  the  officer  is  sworn  in  and  entens  upon  the  duties 
of  the  second  office.  In  the  case  of  the  Commonwealth  v.  Pyle,  18 
Pa.  519,  the  opinion  of  the  court  was  delivered  by  Chief  Justice 
Black,  and  that  eminent  judge  decided  that  "when  the  constitution 
or  a  statute  declares  that  certain  disqualifications  shall  render  a 
person  ineligible  to  an  office,  he  must  get  rid  of  his  disqualifications 
before  he  is  appointed  or  elected.  Such  have  been  the  decisions  of 
Congress  in  the  contests  there.  But  if  the  law  merely  forbids  him 
to  hold  or  enjoy  the  office,  or  exercise  its  duties,  it  is  sufficient  if 
he  qualifies  himself  before  he  is  sworn.  A  man  may  hold  one  office 
after  he  has  been  chosen  to  another  which  is  incompatible  with  it, 
without  thereby  forfeiting  either  of  them,  provided  he  resigns  the 
first  before  he  enters  upon  the  duties  of  the  last." 

It  would  clearly  follow  from  this  that  a  resignation  of  the  first 
office,  long  after  entering  upon  the  duties  of  the  second,  is  too  late, 
and  will  not  cure  the  disqualification.  Probably  the  law  is  so 
declared,  in  order  to  remove  the  temptation  of  illegal  holding  on  to 
two  or  more  officers  at  the  same  time  as  long  as  possible,  and  only 
relinquishing  at  the  last  moment  by  a  resignation  enforced  by  the 
fear  of  an  ouster.  The  constitutions  of  all  or  nearly  all  the  states 
contain  provisions  similar  in  their  nature  to  our  own.  They  are 
intended  to  carry  out  the  well-defined  policy  of  keeping  distinct  and 
separate  the  respective  functions  of  national  and  state  government. 
It  is  for  the  purpose  of  preventing  any  encroachments  of  the  one 
upon  the  other,  and  particularly  of  the  general  upon  the  state 
government  that  these  clauses  are  inserted  in  state  constitutions; 
so  that  state  officers  shall  have  no  divided,  or  perchance,  no  in- 
consistent or  incompatible  duties  to  perform.  This  is  the  general 
principle  and  we  are  bound  to  carry  it  out  in  the  administration  of 
the  law,  even  though  it  hits  so  humble  a  personage  as  the  post- 
master of  DeTurkville,  in  the  county  of  Schuylkill.  No  objection 
is  made  to  his  competency  or  to  his  honesty;  nor  is  it  even  hinted 


GRAY  V.  SEITZ.  229 

that  there  is  danger  that  the  relations  between  the  state  and  fed- 
eral government  are  about  to  be  disturbed  by  allowing  him  to  re- 
tain both  offices,  or  that  the  cause  of  free  government  may  receive 
a  shock  by  permitting  one  and  the  same  person  to  handle  the 
mails  at  DeTurkville,  and  at  the  same  time  act  as  a  county  com- 
missioner. But  the  law  is  no  respector  of  persons.  All  are  sub- 
ject to  its  mandates,  and  whether  the  office  be  great  or  small,  there 
is  no  exception  to  limit  it  or  control  the  operation  of  the  gen- 
eral principles. 

In  the  case  of  Privett  v.  Bickford,  40  Am.  Rep.  301,  the  same 
principle  is  laid  down  as  was  decided  by  Judge  Black  in  Com- 
monwealth V.  Pyle.  It  was  there  decided  that  "although  one  elected 
to  an  office  may,  at  the  time  of  election,  be  politically  disqualified 
from  holding  the'  office,  yet,  if  such  disqualification  be  removed 
before  the  issuing  of  the  certificate  and  taking  possession  of  the 
office,  he  may  legally  hold  it."  See  also  Foltz  v.  Kerlin,  105  Ind. 
231  (55  Am.  Rep.  197)  and  4  B.  Mon.  (Ky.)  224  and  499. 

From  what  we  have  already  said  it  seems  clear  that  the  Com- 
monwealth is  entitled  to  judgment  in  the  present  case  with  costs. 
It  is  but  proper  to  say  that  this  is  the  unanimous  conclusion  of 
the  court. 

And  now,  January  14,  1899.  Judgment  of  ouster  against  the 
defendant,  and  that  the  Commonwealth  recover  her  costs,  to  be 
taxed  according  to  law. 


This  opinion,  which  is  the  opinion  of  the  lower  court  set  forth  at  length 
In  the  opinion  of  the  Supreme  Court  was  reversed  on  appeal  to  that  court. 
It  seems,  however,  to  be  supported  by  the  greater  weight  of  authority. 


GRAY  V.  SEITZ. 


Supreme  Court  of  Indiana.    January,  1904. 
162  Indiana  1. 

DowLiNG,  J.  Appellant  and  appellee  were  opposing  candidates 
for  the  office  of  county  auditor  of  Brown  county  at  the  general 
election  held  in  November,  1902.  The  appellee  received  1,019  of 
the  legal  votes  cast  at  the  election,  and  the  appellant  615  of  such 
votes.  The  appellant  within  the  time  fixed  by  law,  gave  notice  of 
his  intention  to  contest  the  election  of  the  appellee,  and  filed  his 


230  QUALIFICATIONS  FOB  OFFICE. 

statement  of  the  grounds  of  such  contest  in  the  office  of  the  clerk  of 
Brown  county.  The  board  of  commissioners  of  said  county  was 
thereupon  convened  to  try  the  cause  and  the  appellee  appeared  to 
the  action.  On  the  motion  of  the  appellee  the  proceeding  was  dis- 
missed by  the  board  on  account  of  the  insufficiency  of  the  facts 
stated  to  constitute  a  cause  of  action.  An  appeal  from  this  judg- 
ment was  taken  to  the  Brown  Circuit  Court,  where  the  motion 
to  dismiss  was  renewed.  The  court  sustained  the  motion,  and 
lendered  judgment  for  the  appellee. 

The  error  assigned  is  upon  the  ruling  on  the  motion  to  dismiss. 

The  ground  of  contest  was  the  alleged  ineligibility  of  the  appellee 
to  the  office  at  the  time  of  the  election,  and  at  the  time  of  the  com- 
mencement of  the  term  thereof. 

The  supposed  acts  of  bribery  consisted  in  procuring  the  with- 
drawal of  Ross  as  an  opposing  candidate  for  the  nomination  for 
county  auditor  at  a  democratic  primary  election  held  November 
15,  1901,  and  in  entering  into  an  agreement  with  Hanna  and  Tabor, 
electors  of  said  county,  by  which  they  undertook  to  use  their  in- 
fluence with  the  other  electors  of  the  said  county  for  the  said 
John  B.  Seitz  as  a  candidate  for  the  office  of  county  auditor,  and 
to  discourage  and  dissuade  any  other  elector  of  said  county  from 
becoming  a  candidate  at  said  primary  election  for  nomination  to 
said  office  in  opposition  to  said  Seitz,  in  consideration  of  which 
withdrawal  of  said  Ross  and  the  said  services  of  the  said  Hanna 
and  Tabor,  the  appellee,  on  October  15,  1901,  executed  his  promis- 
sory note  for  $300  payable  to  said  Ross  ninety  days  after  its 
date. 

It  is  insisted  by  the  appellant  that  these  proceedings  rendered 
the  appellee  ineligible  to  the  office  of  county  auditor,  to  which  he 
was  elected,  under  §  6,  article  2,  of  the  Constitution  of  this 
State,  and  also  under  §  2327  Bums  1901,  defining  and  punishing 
the  offense  of  bribery  at  primary  elections.  The  provisions  of  the 
Constitution,  supra,  is  as  follows:  "Every  person  shall  be  dis- 
qualified for  holding  office  during  the  term  for  which  he  may  have 
been  elected,  who  shall  have  given  or  offered  a  bribe,  threat  or 
reward  to  secure  his  election."  And  §  2327,  Burns  1901,  declares 
that,  *'Any  person  being  a  candidate  for  nomination  to  any  office 
of  profit  or  trust  under  the  Constitution  or  laws  of  this  State,  or 
of  the  United  States,  before  any  convention  held  by  any  political 
party,  or  at  any  primary  election,  who  loans,  pays,  or  gives  or 
promises  to  loan,  pay  or  give  any  money  or  other  thing  of  value 


GRAY  V.  SEITZ.  231 

to  any  delegate  or  elector,  or  any  other  person,  for  the  purpose  of 
securing  the  vote  or  influence  of  such  delegate,  elector,  or  person 
for  his  nomination,  and  whoever  hires  or  otherwise  employs  for 
consideration  any  person  to  work  for  the  nomination  of  any  person 
to  any  office,  or  to  work  for  the  selection  of  any  delegate  to  be 
chosen  at  any  party  convention  or  primary  election,  shall,  upon 
conviction  thereof,  be  fined  in  any  sum  not  more  than  $500,  and 
disfranchised  and  rendered  incapable  of  holding  any  office  of  profit 
or  trust  within  this  State  for  any  determinate  period,  and  if  nomi- 
nated shall  be  ineligible  to  hold  such  office." 

Section  6,  article  2,  of  the  Constitution,  and  §  2327,  supra,  are 
highly  penal,  and  must  be  strictly  construed  as  against  the  per- 
sons who  are  sought  to  be  subjected  to  the  penalties  and  forfeitures 
imposed.  It  seems  perfectly  clear  that  §  6,  article  2,  of  the  Con- 
stitution applies  only  to  bribes,  threats,  or  rewards,  given  or  offered 
to  secure  the  election  of  a  candidate  at  a  final  or  popular  election. 
No  mention  is  made  of  a  primary  election,  and  the  language  used 
refers  exclusively  to  the  election  by  virtue  of  which  title  to  the 
office  is  claimed.  Section  2327,  supra,  renders  any  person  ineligi- 
ble to  any  office,  for  the  nomination  for  which  he  is  a  candidate 
at  any  primary  election,  who  loans,  pays,  or  gives,  or  promises  to 
loan,  pay,  or  give,  any  money  or  other  thing  of  value  to  any  dele- 
gate or  elector,  or  an  other  person  for  the  purpose  of  securing  the 
vote  or  influence  of  such  delegate,  elector,  or  person  for  his  nomi- 
nation; or  who  hires  or  employs  for  a  consideration  any  person 
to  work  for  the  nomination  of  any  candidate  for  any  office  to  be 
chosen  at  a  primary  election. 

The  complaint  charges  that  in  consideration  of  the  withdrawal 
of  Ross,  the  opposing  candidate  for  the  nomination  for  county  au- 
ditor at  the  primary  election,  and  an  agreement  of  Hanna  and 
Tabor,  on  behalf  of  themselves  and  Ross,  to  use  their  influence 
with  the  electors  of  the  county  for  the  appellee,  and  to  discourage 
and  dissuade  any  other  elector  of  the  county  from  becoming  a  can- 
didate for  the  nomination  for  county  auditor  at  said  primary 
election  in  opposition  to  the  appellee,  the  later  agreed  to  pay  to  Ross 
$300  and  execute  his  note,  with  surety,  for  said  sum. 

The  agreement  alleged  to  have  been  entered  into  by  the  appellee 
with  Hanna,  Tabor,  and  Ross,  fell  under  the  prohibition  of  § 
2327  of  the  statute.  It  included  an  express  promise,  in  writing 
by  the  appellee,  who  was  a  candidate  for  nomination  to  an  office 
of  trust  and  profit  at  a  primary  election,  to  pay  $300  in  money 
to  Ross,  an  opposing  candidate,  for  the  purpose  of  securing  his  with- 


232  QUALIFICATIONS  FOU  OFFICE. 

drawal  from  the  race,  and  the  influence  and  services  of  Hanna  and 
Tabor  for  the  nomination  of  the  appellee. 

But  the  unlawful  agreement  did  not  of  itself  render  the  ap- 
pellee ineligible  to  the  office  to  which  he  was  afterwards  elected. 
It  is  true  that  ineligibility  to  hold  the  office  to  which  the  person 
violating  §  2327,  supra,  is  chosen  is  declared  to  be  one  of  the  pen- 
alties for  the  violation  of  the  section.  These  penalties,  however, 
attach  only  to  one  who  has  been  duly  charged  with,  and  convicted 
of,  the  misdemeanor  created  by  the  statute.  It  is  expressly  declared 
that,  ''upon  conviction  thereof"  the  person  violating  the  statute 
* '  if  nominated  shall  be  ineligible  to  hold  such  office. ' '  The  provision 
of  the  statute  differs  materially  from  §  6,  article  2,  of  the  Consti- 
tution. The  latter  makes  the  fact  that  the  candidate  at  a  popu- 
lar election  has  given  or  offered  a  bribe,  threat,  or  reward  to  secure 
his  election  an  absolute  disqualification  for  holding  the  office  for 
the  term  for  which  he  has  been  elected.  It  has  been  said  to  be 
''self  executing."  Carroll  v.  Green,  148  Ind.  362.  The  penalty  of 
the  statute  becomes  effective  only  after  trial,  conviction  and  judg- 
ment. 

We  express  no  opinion  with  regard  to  any  objections  which  may 
be  taken  to  §  2327,  supra,  but  hold  that  the  complaint  was  insuffi- 
cient because  it  failed  to  allege  that  the  appellee  had  been  adjudged 
guilty  of  a  violation  of  its  provisions.  The  pleading  was  not  good 
under  any  other  section  of  the  statute. 

The  court  did  not  err  in  sustaining  the  motion  to  dismiss  the 
action. 

Judgment  affirmed. 

One  who  appoints  or  participates  in  appointment  to  an  office  is  by  com- 
mon law  disqualified  for  that  office.  People  v.  Thomas,  33  Barb.  (N.  Y.) 
287;  State  v.  Hoyt,  2  Oregon  246. 


CHAPTER   V. 

THE  TERMINATION  OF  THE  OFFICIAL  RELATIONS. 

I.    Expiration  op  the  Term. 

PEOPLE  EX  BEL.  ELDRED,  RESPONDENT  V.  PALMER, 

APPELLANT. 

Court  of  Appeals  of  New  York.    October,  1897. 
154  N.  Y.  133. 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  October  6,  1897, 
which  reversed  an  order  of  Special  Term  denying  relator's  motion 
for  a  peremptory  writ  of  mandamus. 

Andrews,  Ch.  J.  This  proceeding  was  instituted  to  obtain  an 
order  requiring  the  secretary  of  state  to  include  in  his  notices 
among  the  names  of  the  officers  to  be  voted  for  at  the  ensuing 
election  for  the  county  of  Kings  that  of  district  attorney.  The 
sole  question  relates  to  the  duration  of  the  term  of  the  present  in- 
cumbent of  that  office,  who  was  elected  at  the  general  election  held 
in  November,  1895.  It  is  claimed  in  behalf  of  the  relator  that  the 
election  of  the  present  incumbent  was  for  the  term  of  two  years 
from  January  1,  1896,  and  that  his  term  expires  December  31, 
1897,  It  is  insisted,  however,  in  behalf  of  the  defendant,  that  by 
force  of  chapter  772  of  the  Laws  of  1896,  passed  after  the  election 
of  the  present  incumbent,  his  term  of  office  was  fixed  at  four  years 
from  the  time  of  his  election,  which  does  not  expire  until  Decem- 
ber 31,  1899.  The  constitutionality  of  that  statute  is  challenged, 
and  it  has  been  held  by  the  Appellate  Division  for  the  second  de- 
partment that  the  statute  is  unconstitutional  in  so  far  as  it  con- 
tinued the  present  incumbent  in  office  for  the  term  mentioned. 
Prior  to  the  first  day  of  January,  1895,  the  provision  of  the  Con- 
stitution which  regulated  the  election  and  term  of  district  attor- 
ney was  as  follows:  "Sheriffs,  clerks  of  counties,  including  the 
register  and  clerk  of  the  City  and  County  of  New  York,  coroners 
and  district  attorneys,  shall  be  chosen  by  the  electors  of  the  re- 

233 


234  TERMINATION    OP    THE    OFFICIAL    RELATION. 

spective  counties,  once  in  every  three  years  and  as  often  as  va- 
cancies shall  happen."  (Const,  of  1846,  art.  X,  sec.  1.)  The  prede- 
cessor of  the  present  incumbent  of  the  office  was  duly  elected  in 
1892  for  three  years  under  the  Constitution  of  1846,  and  his  term 
expired  December  31,  1895,  and  the  present  incumbent,  as  stated, 
was  elected  as  his  successor.  When  he  was  elected  the  term  of  dis- 
trict attorney  for  Kings  County  had  been  changed  by  article  X, 
sec.  1,  of  the  new  Constitution,  which  took  effect  January  1,  1895, 
which  declared:  "Sheriffs,  clerks  of  counties,  district  attorneys 
and  registers,  shall  be  chosen  by  the  electors  of  the  respective  coun- 
ties, once  in  every  three  years  and  as  often  as  vacancies  shall  hap- 
pen, except  in  the  counties  of  New  York  and  Kings,  and  in  coun- 
ties whose  boundaries  are  the  same  as  those  of  a  city,  where  the 
officers  shall  be  chosen  by  the  electors  once  in  every  two  or  four 
years  as  the  legislature  may  direct."  The  object  of  this  provision 
prescribing  that  the  terms  of  the  county  officers  mentioned  in  the 
counties  of  New  York  and  Kings,  should  be  two  or  four  years, 
was  to  bring  the  time  of  electing  these  officers  into  harmony  with 
the  new  constitutional  provision  contained  in  art.  XII,  sec.  3, 
requiring  that  the  election  of  city  officers,  except  in  cities  of  the 
third  class  and  of  county  officers  elected  in  the  counties  of  New 
York  and  Kings,  **  shall  be  held  on  Tuesday  succeeding  the  first 
Monday  in  November  in  an  odd  numbered  year,  and  the  term  of 
every  such  officer  shall  expire  at  the  end  of  an  odd  numbered  year. ' ' 
It  is  manifest  that  to  carry  out  the  purpose  that  county  officers  in 
the  counties  of  New  York  and  Kings  should  be  elected  in  odd  num- 
bered years,  it  was  essential  to  change  the  term  from  an  odd  to  an 
even  number,  as  a  continuous  three-year  term  would  necessarily 
make  every  alternate  term  expire  in  an  even  numbered  year.  For 
this  reason  it  was  declared  in  article  X,  sec.  1,  that  "such  officers 
shall  be  chosen  by  the  electors  once  in  every  two  or  four  years  as  the 
legislature  shall  direct. ' '  This  provision  doubtless  contemplated  that 
the  legislature  would  act  and  fix  the  term  of  the  district  attorney 
and  the  other  county  officers  in  the  counties  of  New  York  and  Kings 
at  the  one  or  the  other  of  these  periods.  The  whole  legislative  ses- 
sion of  1895,  however,  was  allowed  to  pass  without  any  statutory 
enactment  fixing  the  term  of  the  district  attorney  or  any  other  of 
the  county  officers  in  Kings  County,  so  that  when  the  present  in- 
cumbent of  the  office  of  district  attorney  of  Kings  County  was 
elected  in  the  fall  of  1895,  there  was  no  legislative  enactment  in 
force  prescribing  the  duration  of  the  term.  The  former  term  of 
three  years  had  been  abrogated  by  force  of  the  new  constitutional 


PEOPLE  EX  REL.  ELDRED  V.  PALMER.  235 

provision,  and  the  legislature  had  omitted  to  prescribe  any  other 
term.  The  incumbent  was  not  elected  for  three  years  for  the  rea- 
son stated.  There  was  no  statute  defining  the  duration  of  his 
term,  and  if  nothing  subsequently  had  occurred,  the  election  was 
either  wholly  invalid,  because  no  term  had  been  prescribed,  or  he 
was  elected  for  an  indefinite  term,  or  for  a  term  of  two  or  four 
years,  if  by  a  reasonable  construction  of  the  Constitution  it  could 
be  held  that  in  the  absence  of  legislation  the  duration  of  the  term 
was  fixed  by  the  Constitution  at  one  of  the  two  periods.  But  on 
the  20tli  of  May,  1896,  after  the  present  incumbent  had  entered 
upon  his  office,  the  legislature  enacted  chapter  772  of  the  laws  of 
that  year  as  follows :  * '  The  present  district  attorney  of  the  County 
of  Kings  shall  continue  in  office  until  the  31st  day  of  December, 
1899,  and  his  successor  shall  be  chosen  at  the  annual  election  to 
be  held  next  preceding  the  said  31st  day  of  December,  1899,  for  the 
term  of  four  years,  and  thereafter  district  attorneys  of  the  county 
of  Kings  shall  be  chosen  by  the  electors  of  said  county  once  in 
every  four  years,"  If  this  was  a  valid  exercise  of  legislative 
power,  then  the  tei-m  of  the  present  incumbent  will  continue  until 
the  31st  day  of  December,  1899,  and  no  election  of  a  successor  can 
be  held  until  November  of  that  year. 

We  concur  with  the  Appellate  division  that  the  act,  so  far  as  it 
undertakes  to  continue  the  present  incumbent  in  office  until  De- 
cember 31,  1899,  is  unconstitutional  and  void,  and  without  elabora- 
tion we  shall  state  our  reasons  for  this  conclusion.  The  words  of 
the  Constitution  are  that  the  district  attorney  and  other  officers 
mentioned  in  art.  X,  sec.  1  to  be  elected  in  Kings  county,  "shall 
be  chosen  by  the  electors  once  in  every  four  years  as  the  legislature 
shall  direct."  The  clear  import  of  the  language  is  that  the  direc- 
tion of  the  legislature  fixing  the  term  shall  precede  the  choice  to 
be  made.  The  officers  are  to  be  "chosen"  by  the  electors  for  one 
of  two  periods,  not  for  an  indefinite  period  to  be  subsequently 
defined  by  the  legislature.  It  would  be  contrary  to  all  precedent 
that  the  electors  should  not  be  advised  before  casting  their  votes 
of  the  duration  of  the  term  of  the  officers  to  be  elected.  The 
power  attempted  to  be  exercised  by  the  legislature  in  this  case,  if 
sustained,  would  open  the  door  to  obvious  abuses.  It  would  prac- 
tically confer  upon  the  legislature  the  power  to  prescribe  a  short 
or  long  term,  and  to  shorten  or  lengthen  the  official  life  of  an  offi- 
cer, who  by  the  Constitution  is  to  elected  by  the  people,  upon  con- 
siderations wholly  foreign  to  their  true  interests.  The  court,  in 
People  ex  rel.  Fowler  v.  Bull  (46  N.  Y.  57),  had  occasion  to  con- 


236  TERMINATION  OF  THE  OFFICIAL  RELATION. 

sider  an  act  of  the  legislature  extending  the  term  of  an  elected  offi- 
cer, and  Judge  Folger's  opinion  in  that  case  presents  with  great 
force  the  public  considerations  which  require  the  condemnation 
of  such  legislation.  It  was  regarded  as  subversive  of  the  principles 
of  the  elective  system  and  contrary  to  the  true  interpretation  of  the 
Constitution.  The  act  of  1896  is  in  effect  an  attempt  on  the  part 
of  the  legislature  to  appoint  to  office,  and  by  its  fiat,  without  the 
concurrence  of  the  electors,  to  protect  the  present  incumbent  in 
the  possession  of  an  office  for  a  term  for  which  he  never  has  been 
elected,  unless,  indeed,  the  wholly  inadmissible  claim  of  the  appel- 
lant can  be  maintained,  that  the  electors  voted  for  the  present  dis- 
trict attorney  for  a  term,  to  be  thereafter  fixed  by  the  legislature, 
of  two  or  four  years.  This  contention  ignores  the  plain  meaning 
of  the  constitutional  provision,  and  also  one  of  the  canons  of  con- 
struction applicable  as  well  to  Constitutions  as  to  statutes,  that  pro- 
visions prescribing  power  or  giving  authority  are  to  be  construed, 
in  the  absence  of  a  clear  intention  to  the  contrary,  as  conferring 
power  or  authority  to  be  exercised  in  respect  to  the  future,  and  not 
as  to  transactions  already  consummated. 

Having  reached  the  conclusion  that  the  act  of  1896,  so  far  as  it 
assumed  to  fix  the  term  of  the  present  incumbent  of  the  office,  was 
invalid  as  an  exercise  of  the  power  conferred  by  the  Constitution 
upon  the  legislature  to  fix  the  term  of  office  of  the  district  attor- 
ney, it  remains  to  consider  whether,  in  the  absence  of  legislation, 
the  Constitution  itself  fixed  the  term  of  the  present  incumbent.  We 
are  of  opinion  that,  until  the  legislature  acted,  the  terms  of  county 
officers  elected  in  the  counties  of  New  York  and  Kings  must  be 
deemed  to  be  two  years,  which,  as  to  future  cases,  may  be  extended 
to  four  years  if  the  legislature  shall  so  prescribe.  The  legislature 
had  the  option  to  prescribe  either  one  or  the  other  of  the  two 
periods.  But  not  having  exercised  it,  the  minimum  period  should 
be  taken  as  the  duration  of  the  term.  This  construction  gives  effect 
to  the  constitutional  provision  requiring  elections  for  municipal 
officers  and  county  officers  in  New  York  and  Kings  counties  to  be 
held  in  an  odd  numbered  year.  It  fixes  the  term  at  the  only  period 
which  with  certainty  was  included  within  the  intention  of  the 
electors,  and  prevents  any  hiatus  in  the  incumbency  of  county 
offices.  It  enforces  the  public  policy  that  the  term  of  office  of  an 
elected  officer  shall  be  fixed  before  the  election.  It  renders  fixed 
and  stable  the  terms  of  office  and  prevents  an  exercise  of  legislative 
power  in  legislating  an  incumbent  in  or  out  of  office  upon  partisan 
considerations.    It  leaves  to  the  legislature  the  unrestricted  right 


PEOPLE  EX  REL.  ELDRED  V.  PALMER.  237 

to  prescribe  for  the  future  the  duration  of  the  term  at  the  mini- 
mum or  maximum  period.  While  the  construction  we  adopt  is  not 
free  from  doubt,  it  is  most  consistent  with  the  principles  of  the 
elective  system  and  the  uniform  policy  upon  which  the  courts  have 
acted  in  dealing  with  analogous  conditions.  It  is  to  be  observed 
that  sheriffs,  county  clerks  and  registers  are  in  the  same  category 
as  district  attorneys  in  art.  X,  sec.  1,  of  the  Constitution.  If  the 
act  of  1896  was  a  valid  exercise  of  legislative  power,  then  the  sher- 
iff and  register  of  Kings  county  to  be  elected  this  fall  may  have  a 
two  or  four  years  term  as  the  legislature  may  hereafter  prescribe, 
for  up  to  this  time  no  legislation  has  been  enacted  prescribing  the 
duration  of  their  terms.  Every  consideration  of  public  policy  de- 
mands that  no  such  demoralizing  condition  of  the  public  service 
should  be  permitted  and  we  are  all  satisfied  that  the  Constitution 
does  not  require  it. 

That  part  of  the  act  of  1896  which  prescribes  a  term  of  four 
years  for  the  office  of  district  attorney,  from  and  after  December 
31,  1899,  is  separable  from  the  other  provisions  and  is,  we  think, 
a  valid  fixing  of  the  terms  of  this  officer  to  be  elected  in  that  and 
subsequent  years.     The  term  of  the  officer  to  be  elected  this  yearj 
will  be  two  years,  terminating  December  31,  1899.    The  statutory ' 
and  constitutional  authority  for  holding  an  election  for  district 
attorney  in  Kings  county  the  present  year  is  ample.    The  statute 
prescribes  that  a  general  election  shall  be  held  in  November  of  each ' 
year.     The  Constitution,  article  XII,  sec.  3,  prescribes  that  elec- 
tions for  the  offices  mentioned  therein  "shall  be  held  on  the  Tues- 
day succeeding  the  first  Monday  of  November  in  an  odd  numbered 
year. ' '    Whatever  officers  are  to  be  elected  may  be  voted  for  at  the 
ensuing  election. 

We  concur  in  most  of  the  views  and  in  the  conclusions  in  the, 
opinion  below,  and  the  order  appealed  from  should,  therefore,  be  i 
affirmed.  I 

All  concur. 

Order  afjfirmed. 

See  also  Indianapolis  Brewing  Co.  v.  Claypool,  149  Ind.  193,  supra,  on 
the  power  of  the  legislature  to  fix  the  term  of  an  oflSce. 


238  TERMINATION  OF  THE  OFFICIAL  RELATION. 

THE  PEOPLE  EX  REL.  KINGSLAND  V.  PALMER. 

Court  of  Appeals  of  New  York.   January,  1873. 
52  N.  Y.  83. 

Appeal  from  an  order  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  reversing  an  order  of  special  term 
denying  a  motion  for  a  writ  of  peremptory  mandamus  and  direct- 
ing that  a  writ  issue. 

Allen,  J.  The  objections  made  on  behalf  of  the  appellant  to  the 
order  appealed  from  will  be  noticed  in  their  order. 

2.  The  next  objection  is  that  the  accounts  are  not  properly  cer- 
tified. The  labors  were  performed  between  June  1,  1864,  and 
February  28,  1866,  and  were  certified  after  the  latter  date,  by  a 
single  certificate,  signed  by  all  the  commissioners  in  office  at  the 
time.  One  of  the  commissioners  named  in  the  act  died  October  10, 
1863,  and  another  ceased  to  be  a  resident  of  the  state  in  1864 ;  and 
the  last  meeting  of  the  commissioners  he  attended  was  July  12th 
of  that  year.    The  remaining  commissioners  united  in  the  certificate. 

It  is  not  claimed  that  the  commission  ceased  to  exist  whenever  a 
vacancy  occurred,  or  that  the  power  of  the  remaining  commission- 
ers was  suspended  until  the  vacancy  should  be  filled. 

In  People  v.  Nostrand,  46  N.  Y.  375,  the  act  under  which  the 
question  arose  (Laws  of  1869,  chap.  905)  required  vacancies  to 
be  filled,  as  they  occurred,  by  appointment ;  and  the  court  held  that 
a  vacancy  existing,  the  power  of  the  remaining  commissioners  was 
suspended  until  an  appointment  should  be  made. 

Here  there  is  no  provision  for  a  vacancy,  or  for  the  appointment 
in  place  of  any  commissioner  who  should  die,  refuse  to  act,  resign 
or  remove  from  the  State.  The  three  commissioners  still  in  office 
having  joined  in  the  certificate,  the  presumption  is  that  the  act 
was  regularly  done,  and  at  a  meeting  of  all.  Downing  v.  Rugar, 
21  W.  R.  178.  That  those  who  gave  the  certificate  could  act,  al- 
though the  other  commissioners  had  died  or  become  disqualified, 
see  the  authorities  cited  by  Judge  Cowen,  at  page  182  of  the  case 
cited. 

A  grant  of  power,  in  the  nature  of  a  public  office  to  several  does 
not  become  void  upon  the  death  or  disability  of  one  or  more.  Such 
a  grant  of  power  is  not  in  the  nature  of  a  private  franchise  which. 


KEEIDLER  V.  STATE.  239 

when  granted  to  two,  without  words  or  survivorship,  might  not,  by 
the  rules  of  the  common  law,  survive  the  death  of  one.  But  the 
policy  of  the  law  is  to  guard  against  the  failure  of  a  public  service 
and  therefore,  by  statute,  it  is  provided  that  whenever  any  power, 
authority  or  duty  is  confided  by  law  to  three  or  more  persons,  and 
whenever  three  or  more  persons  or  officers  are  authorized  or  re- 
quired by  law  to  perform  any  act,  such  act  may  be  done  and  such 
power,  authority  or  duty  may  be  exercised  and  performed  by  a 
majority  of  such  persons  or  officers  upon  a  uniting  of  all,  unless 
special  provision  is  otherwise  made.  2  R.  S.,  555,  S.  27.  In  cer- 
tain cases  a  majority  may  act,  when  all  have  been  notified  to  attend 
a  meeting  of  those  entrusted  with  the  power. 

By  death  or  disqualification  of  a  portion  of  the  commission  the 
number  of  its  members  is  reduced,  and  all  do  meet  when  all  who 
are  living  and  qualified  to  act  come  together. 

The  order  appealed  from  must  be  affirmed,  with  costs. 
All  concur. 

Order  affirmed. 


KREIDLER  V.  STATE. 

Supreme  Court  of  Ohio.    December,  1873. 
24  Ohio  State  22. 

Day,  C.  J.  The  prosecution  was  founded  on  section  13  of  the 
act  of  March  8,  1831,  * '  for  the  punishment  of  certain  offenses  there- 
in named."  S.  &  C.  429.  The  section  enacts,  "  That  if  any  person 
shall  take  upon  himself  to  exercise  or  officiate  in  any  office  or  place 
of  authority,  in  this  state,  without  being  legally  authorized,"  the 
person  so  offending  shall,  upon  conviction  thereof,  be  fined  or  im- 
prisoned as  therein  stated. 

The  material  question  in  the  case  is,  whether  the  mere  fact  of 
officiating  in  an  office,  without  legal  authority,  is  under  all  circum- 
stances a  crime  under  this  section.  The  Probate  Court  proceeded 
upon  the  theory  that  it  is.  We  think  otherwise.  For,  to  consti- 
tute the  offense,  a  person  must  do  something  more  than  merely  dis- 
charge the  duties  of  an  office  without  legal  authority.  He  must 
"take  upon  himself"  official  functions  in  such  sense  as  implied 
an  assumption  oi  the  office  without  color  of  right.     Therefore,  to 


240  TERMINATION  OF  THE  OFFICIAL  RELATION. 

"take  upon  himself"  the  exercise  of  an  office  without  being  legally- 
authorized,  within  the  meaning  of  the  section,  is  such  an  assumption 
of  official  authority  as  imports  a  willful  usurpation  of  an  office. 
This  was  what  was  intended  to  be  punished,  and  nothing  short  of 
it  comes  within  the  strict  sense  of  the  statue.  Otherwise,  an  officer 
de  facto,  acting  in  good  faith,  under  color  of  right,  not  designing 
to  "take  upon  himself"  an  office  without  legal  right,  might  un- 
consciously commit  a  crime  in  doing  what  the  law  would  recognize 
as  a  valid  act. 

Nor  does  it  follow  that  an  officer  who  may  be  ousted  from  an 
office  by  proceedings  in  quo  warranto  is  guilty  of  the  criminal 
offense  of  usurping  the  office.  It  was  held  in  Ohio  v.  Ailing,  12 
Ohio  16,  that  two  common  pleas  judges,  who  continued  to  officiate 
after  their  office  was  terminated  by  a  legislative  enactment,  which 
admitted  of  a  reasonable  doubt  whether  that  was  its  legal  effect, 
were  de  facto  judges,  and  could  not  be  regarded  as  "usurpers  and 
intruders ;"  and  their  acts  were  held  to  be  valid.  It  is  clear,  there- 
fore, that  they  could  not  have  been  regarded  as  guilty  of  the  crime 
of  usurpation  of  office. 

In  the  case  before  us,  Kreidler  was  undeniably  lieutenant  of  po- 
lice de  jure  until  the  6th  of  May,  1869,  and  the  question  was 
whether  he  did  not  continue  such,  under  the  city  ordinance,  until 
his  successor  was  qualified.  He  proposed  to  prove  that  he  and  the 
city  authorities  in  good  faith  believed  he  did;  and  claimed  that  if 
he  was  not  such  officer  de  jure,  he  acted  in  good  faith  under  color 
of  right,  and  therefore  could  not  be  regarded  as  usurping,  or  in- 
tentionally taking  upon  himself  to  exercise  an  office  without  being 
legally  authorized.  The  court  refused  to  permit  him  to  make  the 
proof  he  offered,  and  denied  that  any  circumstances  other  than 
a  legal  right  to  the  office  could  shelter  him  from  the  crime  for 
which  he  was  prosecuted.  Therein  we  think  the  court  was  in  error, 
and  that  the  judgment  must,  therefore,  be  reversed,  and  the  cause 
remanded  for  a  new  trial. 

McIlvatne,  Welch,  Stone  and  White,  J.  J.,  concurred. 

As  to  the  effect  on  the  official  relation  of  the  expiration  of  the  term  see 
Romero  v.  United  States  24  Ct.  of  CI.  331  supra. 


STATE  EX  REIi.   MORRIS  V.  BULKELEY.  241 

STATE  EX  REL.  MORRIS  V.  BULKELEY. 

Supreme  Court  of  Errors  of  Connecticut.    January,  1892. 
61  Conn.  287. 

Andrews,  C.  J.  This  is  an  information  in  the  nature  of  a  writ 
of  quo  warranto.  It  alleges  that  the  respondent,  since  the  tenth 
day  of  January  last,  has  used  and  exercised  the  office  of  governor 
of  this  State,  and  threatens  and  intends  to  continue  to  use  said 
office,  its  dignities,  liberties  and  franchises,  and  prays  that  he  may 
be  required  to  show  by  what  warrant  he  claims  to  use  and  exercise 
said  office.  The  respondent  demurred  to  the  information.  The  Su- 
perior Court  made  a  finding  of  certain  facts  other  than  such  as  are 
set  forth  in  the  information,  which  includes  the  senate  and  house 
journals,  to  which  the  parties  agreed,  and  reserved  the  case  for 
the  advice  of  this  court. 

The  case  finds  that  the  respondent,  Morgan  G.  Bulkeley,  was  le- 
gally elected  governor  by  the  General  Assembly  on  the  10th  day  of 
January,  1899,  (there  having  been  no  election  by  the  people)  and 
entered  at  once  upon  the  duties  of  that  office.  The  term  for  which 
he  was  elected  was  till  the  Wednesday  following  the  first  Monday 
of  January,  1891,  and  until  his  successor  was  duly  qualified.  If, 
then,  no  successor  to  him  has  been  chosen,  or  being  chosen,  has  not 
become  duly  qualified,  respondent  still  holds  the  office  of  governor. 
He  holds  that  office  since  the  said  Wednesday  in  January,  1891, 
by  the  same  warrant  that  he  held  it  prior  to  that  date,  and  continues 
to  be  the  de  jure  governor  of  the  State.  It  is  admitted  that  no  per- 
son has  been  chosen  to  be  the  successor  of  the  respondent,  unless 
the  facts  set  forth  in  the  case  show  that  the  relator  has  been  so 
chosen;  and  there  is  no  claim  but  that,  if  so  chosen,  he  is  duly 
qualified.  The  inquiry  then  is :  Has  the  relator  been  chosen  gov- 
ernor according  to  the  constitution  and  the  laws  ? 

The  election  of  a  governor  is  the  selection  of  some  person  to  fill 
that  office.  The  selection  must  be  one  who  possesses  the  required 
qualifications,  and  must  be  made  by  those  who  possess  the  right 
to  vote,  and  at  a  time  and  place  and  in  the  manner  prescribed  by 
law.  The  election  of  state  officers  in  this  state  is  a  process.  It 
includes  the  preliminary  registration,  by  which  those  persons  who 
have  the  right  to  vote  are  determined;  the  time  when,  the  place 
where,  and  the  manner  in  which  the  votes  are  to  be  given  in,  and 
16 


242  TERMINATION  OP  THE  OFFICIAL  RELATION. 

also  the  manner  in  which  the  votes  are  to  be  counted  and  the 
result  made  known.  Each  of  these  steps  must  be  taken  in  pur- 
suance of  the  law  existing  at  the  time  the  election  is  had.  That 
part  of  the  election  process  which  consists  of  the  exercise  by  the 
voters  of  their  choice  is  wholly  performed  by  the  electors  them- 
selves in  the  electors'  meetings.  That  part  is  often  spoken  of  as 
the  election.  But  it  is  not  the  whole  of  the  election.  The  declara- 
tion of  the  result  is  an  indispensable  adjunct  to  that  choice;  be- 
cause the  declaration  furnishes  the  only  authentic  evidence  of  what 
the  choice  is.  The  right  to  choose  any  state  officer,  unless  the  result 
of  the  choice  can  be  published  in  some  way  so  as  to  be  obligatory 
on  the  whole  state,  would  be  no  better  than  a  mockery ;  it  would  be 
to  give  the  form  of  a  choice  without  the  reality.  The  declaration 
is  the  only  evidence  by  which  the  person  elected  can  know  that  he 
is  entitled  to  the  office,  or  the  previous  incumbent  know  that  his  term 
has  expired.  The  courts  can  take  judicial  notice  of  the  fact  of 
an  election,  but  never  of  the  result  of  an  election  or  of  who  is 
elected  until  some  declaration  is  made.  The  declaration  is  the  only 
evidence  by  which  the  other  departments  of  the  government  and 
the  citizens  generally  can  know  whom  to  respect  as  such  officer. 
And  in  order  that  a  declaration  shall  be  made  of  the  result  of  an 
election  for  governor  in  a  way  to  be  obligatory  upon  everybody,  [ 
the  constitution  has  fixed  the  time  and  manner  in  which  the  Gen- 
eral Assembly  shall  make  that  declaration.  Unless  the  declaration 
is  made  in  the  way  so  provided,  the  process  of  the  election  is  not 
complete.  No  other  authority  than  the  General  Assembly  is  em- 
powered to  make  such  declaration.  It  is  found  in  the  case  that 
there  has  been  no  declaration  by  the  General  Assembly  that  the 
relator  had  been  elected  governor,  and  it  is  not  claimed  that  there 
has  been  any  equivalent  act  by  any  other  authority.  It  follows 
that  the  relator — whatever  any  future  inquiry  may  show — cannot 
now  be  said  to  have  been  elected  to  the  office  of  governor ;  and  that 
the  respondent  remains  the  de  jure  as  well  as  the  de  facto  governor 
of  the  state.  It  is  therefore  the  duty  of  all  citizens,  of  the  courts, 
of  all  departments  of  the  state  government,  and  of  both  houses  of 
the  General  Assembly,  to  respect  and  obey  him  accordingly. 

In  point  of  form,  in  the  present  action,  it  is  the  right  of  the  re- 
spondent to  exercise  the  office  of  governor  that  is  in  question. 
But  as  the  right  of  the  respondent  depends  upon  the  election  of  the 
relator  to  that  office,  it  is  really  the  title  of  the  relator  that  is  on 
trial.  If  the  relator  has  not  been  completely  elected  then  the  right 
of  the  respondent  continues.    The  claim  made  in  behalf  of  the  re- 


STATE  EX  EEL.   MORRIS  V.  BULKELEY.  243 

lator  is  that  he  ought  to  have  been  declared  elected  by  the  General 
Assembly,  because,  as  appears  from  the  returns  of  the  presiding 
officers,  he  received  a  majority  of  all  the  votes  cast  for  governor; 
and  as  the  assembly  did  not  do  so,  the  court  ought  now  to  declare 
him  elected  or  to  regard  him  as  having  been  elected  by  such  ap- 
parent majority.  This  claim  admits  that  if  the  General  Assembly 
had  declared  the  relator  elected  upon  the  returns  the  declaration 
would  give  him  only  a  prima  facie  title  to  the  office;  and  that  if 
inducted  into  it  upon  such  declaration,  he  might  be  ousted  therefrom 
upon  its  being  shown  that  he  did  not  in  fact  have  the  real  major- 
ity of  the  votes  cast  for  governor.  If  the  court  should  declare 
the  relator  elected  upon  the  same  returns  it  could  give  him  no 
stronger  Jtitle  to  the  office  than  a  declaration  by  the  General  As- 
sembly. He  could  still  be  ousted  upon  a  proper  proceeding.  It 
would  be  most  unseemly  for  the  court  to  occupy  itself  in  putting 
the  relator  into  the  office  of  governor,  if  by  any  possibility  it  might 
happen  that  the  court  would  be  required  to  remove  him  from  that 
office  as  soon  as  he  began  to  exercise  it. 

The  writ  of  quo  warranto  is  the  form  of  action  specially  adapted 
to  try  the  right  of  an  office.  But  it  tries  only  the  real  title.  It  can 
never  be  used  to  try  an  apparent  title.  It  gives  judgment  on  that 
title  alone  which  cannot  be  afterwards  called  in  question.  The  in- 
formation does  not  allege  that  relator  had  the  majority  of  all  the 
votes,  but  only  the  majority  as  it  appeared  by  the  returns  of  the 
presiding  officers ;  while  other  parts  of  the  information  show  that 
such  apparent  majority  is  in  dispute.  Nor  does  the  information 
contain  any  allegation  of  facts  which  show  that  the  General  Assem- 
bly has  become  unable  to  decide  upon  the  relator's  right  to  the 
office  he  claims. 

If  the  relator  shall  hereafter,  by  an  amendment  of  the  present 
information,  or  by  a  new  one,  allege  that  he  received  a  majority 
of  all  the  votes  legally  cast  for  governor  on  the  4th  day  of  Novem- 
ber, 1890,  and  it  shall  also  appear  from  the  facts  therein  stated 
that  the  General  Assembly  is  without  the  power  to  make  any  dec- 
laration in  respect  to  the  election  for  governor,  a  case  would  be  pre- 
sented of  which  the  Superior  Court  might  take  jurisdiction. 

The  Superior  Court  is  advised  that  the  information  is  insuffi- 
cient, and  to  sustain  the  demurrer. 

In  this  opinion  Seymour,  Torrance  and  Fenn,  Js,,  concurred. 

It  follows  from  the  application  of  the  rule  laid  down  in  the  principal 
case  that  there  is  no  vacancy  in  office  if  the  incumhent  holds  over  under 
the  statute  and  that  therefore  there  is  no  occasion  for  the  exercise  of  the 


244  TERMINATION  OP  THE  OFFICIAL  RELATION. 

power  to  appoint  to  fill  a  vacancy  when  the  statutory  term  expires  with- 
out a  new  election  or  appointment.  People  v.  BIssell,  49  Cal.  234;  State  v. 
Harrison,  113  Ind.  234 ;  State  v.  Hume,  25  Ohio  St  588.  If,  however,  there 
Is  no  statutory  provision  as  to  holding  over,  a  vacancy  occurs  at  the  ex- 
piration of  the  term  of  an  Incumbent  In  case  there  Is  no  election  or  ap- 
pointment of  a  successor,  or  one  Is  appointed  or  elected  who  Is  not  eligible, 
who  does  not  qualify,  or  who  dies,  either  without  qualifying  or  before  the 
expiration  of  the  term.  State  v.  Wilson,  72  N.  C.  155;  People  v.  Curtis,  1 
Idaho  753. 


II.    Resignation. 
BADGER  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.    October,  1876. 
93  V.  8.  599. 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

No  part  of  the  answer  in  our  judgment  requires  consideration, 
except  that  which  raises  the  point  of  the  legality  of  the  resignation 
of  the  parties  named.  If  they  had  ceased  to  be  officers  of  the 
town  when  the  mandamus  was  issued,  there  may  be  difficulty  in 
maintaining  the  order  awaiting  a  peremptory  mandamus  against 
them.  If  they  were  then  such  officers,  the  case  presents  no  diffi- 
culty. 

The  alleged  resignations  of  the  supervisor  and  town  clerk  were 
accepted  by  the  justices  of  the  town ;  but  their  successors  had  not 
been  qualified,  nor,  indeed,  had  they  been  chosen  when  the  petition 
was  filed.  Does  a  supervisor,  town  ,clerk  or  justice  of  the  peace  of 
the  state  of  Illinois  cease  to  be  an  officer  when  his  resignation  is 
tendered  to  and  accepted  by  a  justice  of  the  peace,  or  does  he  con- 
tinue in  office  until  his  successor  is  chosen  and  qualified? 

By  the  common  law  as  well  as  by  the  statutes  of  the  United 
States,  and  the  laws  of  most  of  the  states,  when  the  term  of  office 
to  which  one  is  elected  or  appointed  expires,  his  power  to  perform 
its  duties  ceases.  People  v.  Tieman,  8  Abb.  Pr.  359 ;  30  Barb.  193. 
This  is  the  general  rule. 

The  term  of  office  of  a  district  attorney  of  the  United  States 
is  fixed  by  statute  at  four  years.  When  this  four  years  comes 
round,  his  right  or  power  to  perform  the  duties  of  the  office  is  at 
an  end,  as  completely  as  if  he  had  never  held  the  office.  Rev.  Stat., 
Sec.  769.    A  judge  of  the  Court  of  Appeals  of  the  State  of  New 


BADGER  V.  UNITED  STATES.  245 

York,  or  a  justice  of  the  Supreme  Court,  is  elected  for  a  term  of 
fourteen  years  and  takes  his  seat  on  the  first  day  of  January  fol- 
lowing his  election.  When  the  fourteenth  of  January  thereafter 
is  reached,  he  ceases  to  be  a  judicial  officer,  and  can  perform  no  one 
duty  pertaining  to  the  office.  Whether  a  successor  has  been 
elected  or  whether  he  has  qualified,  does  not  enter  into  the  ques- 
tion. As  to  certain  town  officers,  the  rule  is  different.  1  Rev.  Stat. 
(N.  Y.)  340,  sec.  30. 

The  system  of  the  State  of  Illinois  seems  to  be  organized  upon 
a  different  principle. 

.  .  .  It  is  enacted  (art.  7,  sec.  61,  p.  1075)  that,  at  the  town 
meeting  in  April  of  each  year,  there  shall  be  elected  in  each  town 
one  supervisor  and  one  town  clerk,  who  shall  hold  their  offices  for 
one  year,  and  until  their  successors  are  elected  and  qualified,  and 
such  justices  of  the  peace  as  are  provided  by  law. 

Of  justices  of  the  peace,  it  is  enacted  that  there  shall  be  elected 
in  each  town  not  less  than  two  nor  more  than  five  (depending  upon 
the  population  of  the  town),  who  shall  hold  their  offices  "for  four 
years,  or  until  their  successors  are  elected  and  qualified. ' '  p.  637, 
see.  1. 

Thus  far  it  would  seem  plain  that  the  office  of  a  supervisor  or 
town  clerk  could  not  be  terminated  until  his  successor  subscribed 
and  filed  his  oath  of  office,  and  that  when  the  supervisor  and  town 
clerk  before  us  supposed  that  their  offices  were  at  an  end  by  their 
resignations,  they  were  in  error. 

There  are  two  other  provisions  which,  it  is  supposed,  have  some 
bearing  upon  the  point  we  are  considering.  Sec.  97  (p.  1097) 
provides  that  whenever  a  vacancy  occurs  in  a  town  office  by  death, 
resignation,  removal  from  the  town,  or  other  cause,  the  justices 
may  make  an  appointment  which  shall  continue  during  th,e  unex- 
pired term,  and  until  others  are  elected  or  appointed  in  their  places. 
By  sec,  100  the  justices  of  the  town  may,  for  sufficient  cause  shown 
to  them,  accept  the  resignation  of  any  town  officer,  and  notice  there- 
of shall  immediately  be  given  to  the  town  clerk. 

A  similar  provision  as  to  the  elective  officers  of  a  higher  grade 
is  found  in  the  statutes.  By  c.  46,  sec.  124,  et  seq.  (p.  466),  it  is 
provided  that  resignations  of  elective  officers  may  be  made  to  the 
officer  authorized  to  fill  the  vacancy  or  to  order  an  election  to  fill 
it,  and  the  various  events  which  may  cause  a  vacancy  are  defined. 
Governors,  judges,  clerks  of  courts,  etc.,  are  specifically  referred  to. 


246  TERMINATION  OP  THE  OFFICIAL  RELATION. 

The  provision  as  to  these  officers  and  as  to  the  town  offices  are 
parts  of  the  same  system.  The  resignations  may  be  made  to  and 
accepted  by  the  officers  named ;  but,  to  become  perfect,  they  depend 
upon  and  must  be  followed  by  an  additional  fact;  to-wit,  the  ap- 
pointment of  a  successor  and  his  qualification.  When  it  is  said  in 
the  statute  that  the  resignation  may  be  thus  accepted,  it  is  like  to 
the  expiration  of  the  term  of  office.  In  form  the  office  is  thereby 
ended,  but  to  make  it  effectual  it  must  be  followed  by  the  qualifica- 
tion of  a  successor. 

.  .  .  Thus  justices  hold  for  four  years,  supervisors  and  con- 
stables for  one  year ;  and  should  there  be  created  or  found  to  exist 
a  town  officer,  and  no  provision  be  made  as  to  the  duration  of  his 
office,  this  section  is  intended  to  meet  the  case  by  fixing  one  year 
as  such  term.  It  has  nothing  to  do  with  the  case  before  us,  further 
than  it  reiterates  the  rule  everywhere  found  in  the  statutes  of  Illi- 
nois, that  such  person  shall  serve  not  only  for  one  year,  but  until 
his  successor  shall  qualify. 

In  People  v.  Hopson,  1  Den.  574,  and  in  People  v.  Nostrand,  46 
N.  Y.  382,  it  was  said,  that  when  a  person  sets  up  a  title  to  property 
by  virtue  of  an  office,  and  comes  into  court  to  recover  it,  he  must 
show  an  unquestionable  right.  It  is  not  enough  that  he  is  an  officer 
de  facto,  that  he  merely  acts  in  the  office ;  but  he  must  be  an  officer 
de  jure,  and  have  a  right  to  act.  So,  we  think,  where  a  person  being 
in  an  office  seeks  to  prevent  the  performance  of  its  duties  to  a  cred- 
itor of  the  town,  by  a  hasty  resignation,  he  must  see  that  he  resigns 
not  only  de  facto,  but  de  jure;  that  he  resigns  his  office  not  only, 
but  that  a  successor  is  appointed.  An  attempt  to  create  a  vacancy 
at  a  time  when  such  action  is  fatal  to  the  creditor  will  not  be  helped 
out  by  the  aid  of  the  courts. 

Judgment  affirmed. 

For  the  rule  as  to  the  obligation  to  accept  office  see  People  v.  WilllamB, 
145  111.  573,  supra. 


STATE  V.  FERGUSON.  247. 

STATE  V.  FERGUSON. 

Supreme  Court  of  New  Jersey.    November,  1864. 
31  New  Jersey  Law,  107. 

The  Chief  Justice.  The  issue  which  was  to  be  tried  in  this 
cause  was,  whether  William  Ferguson,  Jr.,  the  defendant,  was  at 
the  time  of  the  service  of  the  writ  of  mandamus  upon  him,  an 
overseer  of  the  highways  of  the  township  of  Upper  Alloways  Creek, 
in  the  county  of  Salem.    .    . 

The  defendant,  on  the  trial,  proved  on  his  part  that  before  the 
service  of  the  mandamus  he  had  sent  in  his  resignation,  in  writing, 
of  the  office  of  overseer  of  the  highways  to  four  of  the  township 
committee,  who  had  endorsed  upon  it  an  acceptance  of  such  resig- 
nation. It  further  appeared  that  the  fifth  township  committeeman, 
who  had  not  signed  the  acceptance,  had  not  been  notified  of  the 
meeting  at  which  the  resignation  was  received  and  accepted,  and 
was  not  present  at  it.  This  resignation  and  acceptance  were  over- 
ruled by  the  court. 

Two  question  are  discussed.  First.  Was  the  resignation  of  the 
officer  complete,  and  did  it  operate  as  a  discharge  from  the  office 
in  the  sense  of  an  acceptance  ?  Second.  Was  there  a  legal  accept- 
ance of  the  resignation  in  this  case? 

First,  as  to  the  officer's  power  to  resign.  It  was  insisted  on  the 
part  of  the  defendant  that  an  overseer  of  the  highways  has  the 
right,  in  law,  to  resign  at  will,  and  that  the  mere  notification  of 
the  fact  that  he  resigns  discharges  him  from  his  office. 

If  he  possess  this  power  to  resign  at  pleasure,  it  would  seem  to 
follow,  as  an  inevitable  consequence,  that  he  cannot  be  compelled  to 
accept  the  office.  But  the  books  seem  to  furnish  no  warrant  for  this 
doctrine. 

To  refuse  an  office  in  a  public  corporation  connected  with  local 
jurisdiction,  was  a  common  law  offence  and  punishable  by  indict- 
ment. In  Vanacker's  case,  reported  in  Carthew  480  and  in  1  Ld. 
Raymond  496,  it  was  decided  that  a  municipal  corporation  of  com- 
mon right  possessed  authority  to  impose  fines  for  refusal  to  accept 
office.  Lord  Holt  remarking,  "that  it  would  be  in  vain  to  give  them 
such  power  to  elect  sheriffs,  etc.,,  if  they  could  not  compel  the  per- 
sons elected  to  serve."  And  again  he  says:  "As  every  citizen  is 
capable  of  the  benefit  of  this  franchise  so  he  ought  to  submit  to  the 
charge  also."    And  then  in  the  case  of  Pelson,  2  Lev.  252,.  a  suit 


248  TERMINATION  OP  THE  OFFICIAL  RELATION. 

"was  sustained  in  a  by-law  of  the  corporation  to  recover  a  penalty 
for  not  serving  in  the  office  of  steward.  In  The  Queen  v.  Hunger- 
ford,  11  Mod.  142,  a  motion  was  made  in  the  King's  Bench  for  an 
information  in  the  nature  of  a  quo  warranto  against  a  common 
councilman  of  Bristol  for  refusing  to  take  upon  himself  the  office 
after  he  was  chosen,  but  the  court  denied  the  motion  and  said  their 
remedy  was  to  proceed  by  their  by-laws  in  order  to  compel  him — 
he  not  being  such  a  public  officer  as  a  sheriff — but  if  they  had 
applied  to  the  court  for  a  mandamus  they  would  have  had  it.  The 
same  principle  was  clearly  recognized  in  the  case  of  The  King  v. 
Larwood,  4  Mod.  270,  which  was  an  information  against  the  de- 
fendant who  had  been  elected  sheriff  in  the  city  of  Norwich,  and 
who  had  refused  to  serve, ' '  to  the  great  hindrance, ' '  in  the  language 
of  the  information,  "of  the  business  both  of  the  King  and  his  sub- 
jects." So  uniformly  is  this  doctrine  maintained  by  an  extensive 
series  of  decisions  that  we  find  it  stated  as  the  unquestionable  law 
by  all  the  text  writers,    .    .    . 

Regarding,  then,  this  doctrine  of  the  law  as  established,  it  seems 
to  be  an  unavoidable  sequence  that  the  party  elected,  and  who  is 
thus  compelled  by  force  of  the  sanctions  of  the  criminal  law  to 
accept  the  office,  cannot  afterwards  resign  it  ex  mero  motu.  If  his 
recusancy  to  accept  can  be  punished,  it  cannot  be  that  he  can  accept 
and  immediately  afterwards,  at  his  pleasure,  lay  down  the  office. 
The  law  is  far  too  practical  to  admit  of  such  a  frustration  of  one 
of  its  regulations,  designed  for  the  protection  of  the  public  interest. 
The  only  authority  which  was  cited  to  lend  countenance  to  such  a 
proposition  was  that  of  The  United  States  v.  Wright,  1  McLean  512, 
in  which  the  question  was  whether  the  sureties  of  a  collector  of 
internal  revenue  ceased  to  be  responsible  for  the  acts  of  their  prin- 
cipal subsequent  to  his  resignation.  .  .  However  true  the  prop- 
osition may  be  as  applied  to  the  facts  then  before  the  Circuit  Court, 
it  is  clearly  inconsistent  with  all  previous  decisions,  if  extended 
over  the  class  of  officers  where  responsibility  is  the  subject  of  con- 
sideration. .  .  .  The  decisions,  in  my  opinion,  go  to  this  point 
and  not  beyond  it,  that  a  resignation,  when  completed  by  an 
acceptance,  will  be  a  discharge  from  the  office. 

The  remaining  question  in  this  case  then  is,  was  there  a  legal 
acceptance  of  the  resignation  of  the  defendant? 

I  do  not  perceive  how  this  point  can  be  plausibly  insisted  on. 
The  people  elect  the  overseer,  how  can  the  township  committee 
discharge  him?  Whence  do  they  derive  the  power?  Their  whole 
authority  is  defined  in  the  statute  and  they  have  none  other^  ex- 


BEITER  V.   STATE.  249 

cept  what  is  thus  conferred  and  such  powers  as  are  necessary  to 
carry  into  execution  those  thus  expressly  given.  The  13th  section, 
Nix  Dig.  875,  in  the  act  relating  to  townships,  provides  for  fill- 
ing vacancies  in  the  office  of  overseers  of  the  roads  by  special  elec- 
tion, and  on  the  neglect  of  the  electors  gives  the  power  to  the  com- 
mittee to  fill  the  office.  But  this  power  to  appoint  in  a  certain 
juncture  does  not  certainly  imply  a  right  to  assist  in  creating  a 
vacancy.  I  cannot  think  the  township  committee  are  the  agents 
of  the  corporation  for  the  purpose  of  accepting  resignations. 

But,  admitting  the  power  to  exist,  it  was  not,  in  my  opinion, 
legally  exercised  in  this  case.  The  township  committee  is  com- 
posed of  five  members,  and  can  no  more  legally  act  unless  legally 
convened  than  the  corporation  can.  All  the  members  must  be 
summoned.  And  in  this  case  the  fifth  man  was  not  present  nor 
was  he  notified  of  the  meeting.  The  rule  that  all  the  members  of 
the  corporate  body,  or  of  a  branch  of  a  corporate  body  who  dis- 
charge special  functions  for  the  society,  who  have  the  right  to 
consult  and  to  vote,  must  be  notified  in  some  form  to  attend  the 
meetings  of  the  body  to  which  they  belong,  is  too  familiar  to  re- 
quire much  reference  to  authorities  in  its  support.  See  Grant  on 
Corp.,  156-7-8. 

My  conclusion  is  that  an  overseer  of  the  highways  has  not  the 
right  to  quit  his  office  at  pleasure.  And  that  the  resignation  of  the 
defendant  in  this  case  was  not  accepted  by  competent  authority; 
and  that,  consequently,  the  verdict  below  was  right. 

Van  Dyke,  J.,  dissented. 


REITER  V.  STATE. 


Supreme  Court  of  Ohio.    February,  1894. 
51  Ohio  St.  74. 

Error  to  the    Circuit  Court  of  Hamilton  County. 

The  material  facts  found  by  the  Circuit  Court  on  the  trial  of 
this  case,  are  as  follows : 

On  the  21st  day  of  February,  1893,  Amos  Hill,  being  the  mayor 
of  the  village  of  Pleasant  Ridge  in  Hamilton  County,  presented 
to  the  council  while  in  session  the  following  resignation: 


250  TERMINATION  OF  THE  OFFICIAL  RELATION. 

**  Pleasant  Ridge,  February  21,  1893. 
"To  the  Honorable  Council  of  the  village  of  Pleasant  Ridge: 

I,  Amos  Hill,  mayor,  tender  to  you  my  resignation,  to  take  effect 
March  1,  1893,  as  I  cannot  take  time  to  attend  to  this  office. 
"Yours  with  respect, 

"Amos  Hill." 

On  motion  this  resignation  was  laid  over  to  the  next  meeting, 
March  7,  when  it  was  accepted  by  council  to  take  effect  at  once, 
and  at  an  adjourned  meeting  held  March  11,  George  Reiter,  plain- 
tiff in  error,  was  appointed  mayor  to  fill  the  vacancy  caused  by  the 
resignation  of  Mr.  Hill,  and  on  the  same  day  Mr.  Reiter  was  quali- 
fied and  entered  upon  the  duties  of  his  office. 

At  the  following  April  election  John  H.  Durrell,  was  elected 
mayor  of  the  village  of  Pleasant  Ridge,  and  in  due  time  gave  bond, 
qualified,  and  demanded  the  office,  but  Mr.  Reiter  refused  to  sur- 
render the  office  to  him,  and  claimed  that  the  election  for  mayor 
held  in  April,  was  not  authorized  by  law,  as  the  election  occurred, 
as  he  claimed,  less  than  thirty  days  after  the  vacancy. 

Thereupon  Mr.  Durrell  filed  his  petition  in  quo  warranto  in  the 
circuit  court  of  Hamilton  county,  to  oust  Mr.  Reiter  from  the 
office  of  mayor. 

Upon  the  above  facts  the  Circuit  Court  found  in  favor  of  Mr. 
Durrell,  ousted  Mr,  Reiter  and  ordered  Mr.  Durrell  to  be  inducted 
into  the  office  of  mayor;  to  all  of  which  Mr.  Reiter  excepted,  and 
filed  his  petition  in  this  court  to  reverse  the  judgment  of  the  Cir- 
cuit Court. 

BuRKET,  J.  Section  1754  of  the  Revised  Statutes  provides  as 
follows : 

"In  case  of  the  death,  resignation,  disability,  or  other  vacation 
of  his  office,  the  council  may,  by  a  vote  of  a  majority  of  all  the  mem- 
bers elected,  appoint  some  suitable  person  within  the  corpora- 
tion to  act  as  mayor,  and  discharge  the  duties  of  the  office  until 
the  vacancy  is  filled,  or  the  disability  removed :  Provided,  that  at 
the  next  annual  municipal  election  occurring  more  than  thirty 
days  after  such  vacancy,  a  mayor  shall  be  elected  for  any  unex- 
pired term,  unless  the  disability  is  of  a  temporary  character." 

The  election  was  held  on  the  third  day  of  April,  1893.  If  a 
vacancy  in  the  office  occurred  on  the  first  day  of  March,  then  the 
April  election  occurred  more  than  thirty  days  after  such  vacancy, 
and  the  election  of  Mr.  Durrell  was  valid ;  but  if  the  vacancy  did 
not  occur  until  the  resignation  was  accepted  on  the  7th  of  March, 


REITER  V.  STATE.  251 

then  the  vacancy  occurred  less  than  thirty  days  before  the  April 
election,  and  in  such  case  the  election  of  Mr.  Durrell  would  be  void. 

The  date  at  which  the  vacancy  occurred  depends  upon  the  ques- 
tion whether  the  delivery  of  the  resignation  to  the  council  to  take 
effect  March  1st,  caused  a  vacancy  on  that  day,  or  whether  the 
vacancy  occurred  upon  the  acceptance  of  the  resignation  on  the 
7th  day  of  March.  It  seems  to  be  well  settled  in  England  and  at 
common  law,  that  a  resignation  of  an  office  does  not  take  effect, 
so  as  to  create  a  vacancy,  until  accepted  by  the  proper  authority. 
Hoke  V.  Henderson,  4  Deveraux  (N.  C.)  29;  Bex  v.  Mayor  of  Rip- 
pan,  1  Lord  Raym.  563 ;  Beg.  v.  Lane,  2  Lord  Raym.  1304 ;  Ed- 
wards V.  United  States,  103  U.  S.  471;  State  v.  Clayton,  27  Kan. 
442;  State  ex  rel.  Beeves  v.  Ferguson,  31  N.  J.  L.  107;  City  of 
Waycross  v.  Youmans,  85  Ga.  708;  State  ex  rel.  v.  Boecker,  56 
Mo.  19 ;  Badger  v.  U.  8.  ex  rel.  93  U.  S.  599 ;  People  v.  Sup.  Bar- 
nett  Tp.,  100  111.  332;  Jones  v.  City  of  Jefferson,  6  Tex.  576. 

The  common  law  prevails  in  this  state  in  so  far  as  it  is  fairly 
applicable  to  our  institutions  and  manner  of  living,  unless  abro- 
gated or  modified  by  statute.  So  that  the  real  question  in  this 
case  is,  whether  the  common  law  rule  as  to  resignations  shall  gov- 
ern in  this  state,  or  whether  that  rule  has  been  abrogated  by  our 
legislation,  or  is  inconsistent  with  out  institutions.  That  there  is 
no  statute  expressly  changing  the  common  law  in  this  respect 
seems  clear;  but  it  seems  difficult,  if  not  impossible,  to  reconcile 
our  various  statutes  with  the  common  law  rule.  The  doctrine  of 
the  common  law  is  that  an  officer  has  not  the  absolute  right  at  his 
own  pleasure  to  resign  his  office;  that  the  public  is  interested  as 
well  as  the  individual  incumbent;  that  an  acceptance  is  necessary 
to  perfect  a  resignation;  and  that  the  public  have  a  right  to  com- 
mand the  services  of  any  citizen  in  any  official  position  which  they 
may  designate. 

This  common  law  doctrine  seems  inconsistent  with  out  statutes 
as  well  as  with  our  practical  treatment  of  official  positions. 

By  the  statutes  ...  a  clear  intention  is  evinced  that  accept- 
ance shall  not  be  necessary  to  the  validity  of  a  resignation,  except 
as  to  members  of  the  general  assembly,  and  persons  appointed  to 
certain  positions  of  trust,  and  these  exceptions  only  tend  to  make 
more  clear  the  intention.  These  statutes  also  show  that  office  hold- 
ing is  not  regarded  as  compulsory  in  this  state.  It  is,  therefore, 
clear  that  the  common  law  rule  as  to  the  acceptance  of  resignations 


252  TERMINATION  OF  THE  OFFICIAL   RELATION. 

has  been  abrogated  in  Ohio,  to  the  extent  at  least  of  authorizing 
the  filling  of  the  vacancy. 

In  many  states,  it  is  held  that  a  resignation  of  an  officer  takes 
effect  at  once  without  acceptance  by  any  one,  and  that  the  hold- 
ing of  office  is  not  compulsory.  This  is  said  to  be  the  modem  doc- 
trine on  this  subject.  U.  S.  v.  Wright,  1  McLean  509 ;  McCreary 
on  Elections,  sec.  270 ;  People  v.  Porter,  6  Cal.  26 ;  State  v.  Clarke, 
3  Nev.  566 ;  Olmstead  v.  Dennis,  77  N.  Y.  378 ;  State  v.  Mayor,  4 
Neb.  260;  Bunting  v.  Willis,  27  Gratt.  144;  S.  C.  21  Am.  R.  338; 
State  V.  Hauss,  43  Ind.  105;  Gilbert  v.  Luce,  11  Barb.  (N.  Y.)  91; 
Leech  v.  State,  78  Ind.  570. 

TJie  policy  of  the  state,  as  shown  by  our  statutes,  favors  the 
filling  of  vacancies  in  office  by  election  as  soon  after  a  vacancy 
occurs  as  is  consistent  with  proper  care  and  consideration  on 
part  of  the  public.  A  proper  regard  for  the  rights  of  the  people 
requires  that  it  shall  not  be  in  the  power  of  any  officer,  or  body 
of  men,  to  refuse  to  accept  a  resignation,  and  thereby  prevent  an 
election  at  the  proper  time  to  fill  the  vacancy.  Such  power,  if 
conceded  to  exist,  might  tempt  a  partisan  officer  to  delay  the  ac- 
ceptance of  a  resignation  until  too  late  to  fill  the  vacancy  at  the 
succeeding  election,  and  thereby  lengthen  by  one  year  the  term 
of  office  of  his  own  appointee.  More  harm  is  to  be  feared  from 
this  source,  than  from  hiatus  in  office,  an  event  not  likely  to  occur 
in  this  state  where  men  able  and  willing  to  fill  office  are  so  numer- 
ous. 

The  responsibility  of  a  hiatus  in  office,  should  rest  upon  the 
person  or  body  holding  the  appointing  power,  rather  than  upon 
the  resigning  officer.  If  the  appointing  power  properly  performs 
its  official  duties,  no  harm  is  to  be  feared  from  a  hiatus  in  office. 

It  is,  therefore,  clear,  on  principles  of  public  policy,  as  well  as 
a  proper  construction  of  our  statutes,  that  acceptance  is  not  neces- 
sary to  the  validity  of  a  resignation,  in  so  far  at  least  as  to  author- 
ize the  filling  of  the  vacancy ;  and  that  the  resignation  in  question 
in  this  case  took  effect  on  the  first  day  of  March,  1893,  so  as  to 
create  a  vacancy  which  could  be  lawfully  filled  at  the  following 
April  election. 

What  the  rights  of  the  public,  or  the  duties  of  the  resigning 
officer,  may  be  for  the  protection  of  public  interests  and  property 
from  the  date  of  the  resignation  to  the  filling  of  the  vacancy,  is 
not  involved  in  this  case,  and  need  not  now  be  decided.    Should 


WARDLAW  V.  MAYOR  OF  NEW  YORK.  253 

any  danger  be  apprehended  from  that  source,  the  proper  remedy 
can  be  supplied  by  the  law-making  power. 
The  judgment  of  the  Circuit  Court  is 

Affirmed. 


MARY  A.  WARDLAW,  AS  ADMINISTRATRIX,  RESPOND- 
ENT, V.  THE  MAYOR,  ALDERMEN,  AND  COMMONALTY 
OF  THE  CITY  OF  NEW  YORK,  APPELLANT. 

Court  of  Appeals  of  New  York.    February,  1893. 
137  N.  Y.  194. 

O'Brien,  J.  The  plaintiff's  intestate  was,  on  the  first  day  of 
June,  1885,  appointed  assistant  engineer  in  the  department  of  pub- 
lic works  of  the  city  of  New  York.  The  salary  of  the  place  was 
fixed  at  $1,500  per  year,  which,  on  January  1,  1886,  was  in- 
creased to  $1,800.  He  was  paid  the  stipulated  salary  up  to  July 
23,  1886,  when  the  commissioner  of  public  works  addressed  to  him 
a  communication  in  writing  as  follows: 

' '  Notice  of  suspension  as  assistant  engineer  in  the  department  of 
public  works  is  hereby  served  on  you,  the  same  to  take  effect  on 
and  after  July  31,  1886. ' '  The  recovery  in  this  case  was  for  the 
salary  subsequent  to  this  date,  and  to  January  30,  1890,  on  which 
last-named  date  the  commissioner  addressed  to  him  another  com- 
munication in  writing  as  follows: 

"Sir: — ^Understanding  from  the  counsel  to  the  corporation  that 
you  claim  to  he  still  in  the  employ  of  the  department  as  an  assist- 
ant engineer,  and,  without  admitting  the  fact  to  be  so,  I  desire 
to  set  at  rest  all  doubt  on  that  point  by  discharging  you  from  and 
after  this  date,  which  I  hereby  do." 

The  original  plaintiff  died  while  the  action  was  pending  and  the 
present  plaintiff,  his  widow  and  administratrix,  was  substituted. 
The  commissioner  had  power  to  discharge  assistant  engineers  in 
the  department  at  pleasure  and  the  plaintiff's  contention  is  that 
this  conceded  power  was  not  exercised  as  to  her  intestate,  until 
he  received  the  last  communication.  It  does  not  follow  that  be- 
cause the  commissioner  in  his  first  letter  used  the  term  ''sus- 
pended" instead  of  ''discharged"  that  he  did  not  intend  to  ter- 
minate the  employment  as  assistant  engineer  and  to  create  a 
vacancy  in  the  office  if  it  be  one,  nor  does  it  follow  that  Wardlaw 


254  TERMINATION  OP  THE  OFFICIAL   RELATION. 

did  not  understand  from  this  communication  that  his  services  were 
no  longer  required  as  an  assistant  engineer. 

He  used  the  word  suspended  in  the  first  letter  and  after  being 
informed  that  there  was  a  claim  made  that  a  dismissal  was  not 
thereby  accomplished  he  used  the  word  discharged  in  the  second. 
If,  however,  Wardlaw  understood  from  the  first  letter  that  his 
services  were  no  longer  required  as  an  assistant  engineer  and  that 
compensation  was  no  longer  to  be  paid  to  him  in  that  capacity  and 
that  such  was  the  purpose  of  this  notice  from  the  commissioner 
and  both  parties  acted  accordingly,  then  the  first  notice  operated 
to  terminate  the  employment,  though  it  was  called  a  suspension 
instead  of  a  dismissal. 

.  .  An  officer  suspended  from  the  performance  of  the  duties 
of  his  office  by  the  appointing  power,  but  not  removed,  is  entitled 
to  the  salary  of  the  office  during  the  period  of  the  suspension.' 
{Fitzsimmons  v.  City  of  Brooklyn,  102  N.  Y.  536;  Emmett  v. 
Mayor,  etc.,  128  id.  4.17;  Gregory  v.  Mayor,  etc.,  113  id  416; 
Lethbridge  v.  Mayor,  133  id.  232.) 

But  the  suspended  officer  may  waive  that  right  by  express  agree- 
ment or  by  conduct  from  which  such  an  agreement  or  intention 
on  his  part  may  be  fairly  and  reasonably  inferred.  When  he 
accepts  other  employment  from  the  appointing  or  removing  power 
at  larger  compensation,  the  inference  that  there  was  an  inten- 
tion on  his  part  to  abandon  the  first  position  would  seem  to  be  ' 
strong,  but  even  though  the  compensation  in  the  new  position  be 
less,  it  might  still  be  a  question  of  fact  whether  he  intended  to 
abandon  a  position  from  which  he  could  at  any  time  be  removed 
for  another  that  promised  more  permanent  employment,  or  at 
least  was  quite  as  certain  in  its  tenure  of  duration. 

All  concur. 

Judgment  affirmed. 

Compare  Gregory  v.  Mayer,  113  N,  Y.  416,  inlra.  The  official  relation 
Is  terminated  also  by  the  loss  by  the  incumbent  of  an  office  of  the  qualifica- 
tions for  the  office.    Oliver  v.  The  Mayor,  63  N.  J.  L.  634,  supra. 


RICH  V.  JOCHIM.  255 

III.    Removal  prom  Office. 

1.    Power  of  Legislature. 

ATTORNEY  GENERAL  EX  REL.  RICH  V.  JOCHIM. 

Supreme  Court  of  Michigan.    January,  1894. 
99  Michigan  358. 

Hooker,  J.  By  Constitution  (art.  8,  sec.  4),  and  by  statute 
(How.  Stat.,  sec.  202),  the  Board  of  State  Canvassers  is  made 
to  consist  of  the  Secretary  of  State,  State  Treasurer,  and  Com- 
missioner of  the  State  Land  Office.  It  is  the  duty  of  this  board  to 
canvass  the  returns  from  the  various  counties  of  the  state,  and 
declare  the  result,  of  elections  for  State  officers  and  upon  con- 
stitutional amendments.  At  the  spring  election  in  the  year  1893 
four  amendments  to  the  Constitution  were  voted  upon  by  the  elec- 
tors of  the  State,  one  of  which  provided  for  an  increase  of  the 
salaries  of  several  of  the  state  officers,  including  the  Secretary  of 
State  and  the  Commissioner  of  the  State  Land  Office.  These 
amendments  were,  by  the  Board  of  Canvassers,  declared  carried. 
Subsequently,  the  returns  were  recanvassed  by  the  board,  in  obedi- 
ence to  a  writ  of  mandamus  issued  by  this  court,  when  it  was  found 
and  declared  that  the  amendment  relating  to  salaries  was  de- 
feated. Proceedings  were  then  taken  by  the  Governor,  which  cul- 
minated in  an  order  by  him  removing  each  of  said  officers  from 
his  office,  and  declaring  the  same  vacant;  and,  respondents  refus- 
ing to  surrender  their  said  offices,  information  in  the  nature  of 
quo  warranto  were  filed  in  the  name  of  the  Attorney  General  upon 
the  relation  of  the  Governor,  to  try  their  right  to  such  offices. 
This  is  the  proceeding  against  the  Secretary  of  State. 

The  questions  in  the  case  are  raised  by  the  replication  and  the 
demurrer  of  respondent  thereto.  In  answer  to  the  plea,  which 
asserts  respondent's  election  and  accession  to  the  office  of  Secre- 
tary of  State,  the  replication  sets  up  in  detail  the  facts  upon  which 
the  relator's  claim  is  based,  viz. ;  That  relator  was  the  duly  elected 
and  acting  Governor  of  this  State;  that,  as  such,  it  became  and 
was  his  duty,  under  section  8  of  article  12  of  the  Constitution, 
to  inquire  into  the  condition  and  administration  of  the  office  of 
Secretary  of  State,  and  the  manner  in  which  respondent  performed 
the  duties  of  such  office,  for  the  purpose  of  determining  whether 
said  respondent  had  been  guilty  of  gross  neglect  of  duty  in  rela- 


256  TERMINATION  OP  THE  OFFICIAL  RELATION. 

tion  to  his  duties  as  a  member  of  the  Board  of  State  Canvassers, 
and  to  remove  respondent  from  said  office  for  gross  neglect  of 
duty,  if  he  should  be  found  guilty  thereof;  that,  a  charge  of  that 
kind  having  come  to  the  knowledge  of  the  relator,  he  caused  writ- 
ten notice  to  be  served  upon  the  respondent,  which  notice  required 
him  to  appear  before  the  relator,  and  show  cause  why  he  should 
not  be  removed  from  his  office  of  Secretarj^  of  State  for  gross 
neglect  of  duty  in  connection  with  the  canvass  of  the  returns  in 
relation  to  said  amendment  relating  to  the  salaries  of  State  offi- 
cers, such  notice  containing  specific  charges  of  neglect. 

The  replication  further  alleges  that  the  respondent  appeared  by 
counsel  before  relator,  and  moved  to  vacate  the  notice  and  dis- 
miss the  charges.  ...  It  is  further  alleged  that  the  motion 
was  denied ;  that  evidence  was  introduced  in  support  of  the  infor- 
mation. 

The  replication  further  states  that  no  evidence  was  offered  upon 
the  part  of  the  respondent ;  that  an  order  adjudging  respondent 
guilty,  and  removing  him  from  his  said  office,  was  thereupon  made, 
and  duly  served  upon  said  respondent,  upon  the  19th  day  of  Feb- 
ruary, 1894.     As  stated,  a  demurrer  to  this  replication  was  filed. 

The  important  questions  presented  by  this  record  are  (1)  the 
power  of  the  Governor  to  remove  respondent;  (2)  the  sufficiency 
of  the  cause  alleged.  The  jurisdiction  of  this  Court  to  review  or 
pass  upon  the  official  acts  of  a  co-ordinate  branch  of  government 
was  not  discussed.  It  was  referred  to  in  brief  of  counsel  for 
relator,  with  an  express  disavowal  of  a  desire  to  raise  the  question. 
We  shall,  therefore,  omit  a  discussion  of  that  subject. 

Whatever  authority  the  Governor  has  to  remove  respondent  must 
be  found  in  section  8  of  article  12  of  the  Constitution.    .    .    . 

It  is  contended  that  this  section  is  in  violation  of  the  amend- 
ment of  the  Constitution  of  the  United  States  which  provides  that 
no  state  shall  "deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law."  Const.  U.  S.  Amend.  14,  sec.  1. 
...  To  sustain  this  point  it  must  appear  (1)  that  the  removal 
from  office  is  a  deprivation  of  the  respondent  of  his  property ;  and 
(2)  that  it  was  sought  to  be  accomplished  without  due  process 
of  law. 

A  public  office  cannot  be  called  "property,**  within  the  mean- 
ing of  these  constitutional  provisions.    If  it  could  be,  it  would  fol- 


RICH  V.  JOCHIM.  257 

low  that  every  public  officer,  no  matter  how  insignificant  the  office 
would  have  a  vested  right  to  hold  his  office  until  the  expiration 
of  the  term.  Public  offices  are  created  for  the  purposes  of  gov- 
ernment. They  are  delegations  of  portions  of  the  sovereign  power 
for  the  welfare  of  the  public.  They  are  not  the  subjects  of  con- 
tract, but  they  are  agencies  for  the  State,  revocable  at  pleasure 
by  the  authority  creating  them,  unless  such  authority  be  limited 
by  the  power  which  conferred  it. 

The  legislature  may  remove  officers  not  only  by  abolishing  the 
office,  but  by  an  act  declaring  it  vacant,  as  was  done  by  Act  No. 
140,  section  13,  Laws  of  1891.  Throop  v.  Langdon,  40  Mich.  673 ; 
Auditors  v,  Benoit,  20  Id.  184.  And  it  may  lodge  the  power  to  re- 
move from  statutory  offices  in  boards  or  other  officers,  subject  to 
statutory  regulations.  And,  while  it  cannot  remove  incumbents  of 
constitutional  offices,  it  is  not  because  of  an  inherent  difference  in 
the  qualities  of  the  office,  but  because  the  power  to  remove  is  limited 
to  the  power  that  creates.  The  constitutional  officer  is  an  agent  of 
government.  There  is  the  same  lack  of  the  ingredients  of  contract, 
and  the  same  power  to  abolish  the  office  or  remove  the  officer  by 
amendment  of  the  Constitution.  City  Council  v.  Sweeney,  44  Ga. 
463 ;  Butler  v.  Pennsylvania,  10  How.  402. 

The  fact  that  some  eases  hold  that  removals  from  office  cannot, 
in  some  instances,  be  made,  except  upon  cause  shown,  upon  no- 
tice, specific  charges,  and  after  a  hearing  in  its  nature  judicial, 
does  not  militate  against  this  doctrine.  These  cases  simply  hold 
that  removals  are  limited  by  the  power  of  the  people  or  Legislature, 
through  the  Constitution  or  statute;  not  that  a  vested  property 
right  is  involved  in  the  holding  of  office,  or  that  removal  is  beyond 
the  power  which  creates  the  office  and  the  officer.  Nor  does  it  fol- 
low that  removal  from  office  is  a  deprivation  of  the  officer  of  prop- 
erty, because  it  must  be  for  cause,  upon  specific  charges,  and  after 
an  opportunity  to  be  heard. 

Again,  as  all  statutory  offices  are  taken  subject  to  legislative  ac- 
tion, so  all  constitutional  offices  are  taken  subject  to  constitutional 
changes,  and  both  are  upon  the  terms  and  subject  to  the  conditions 
existing  by  law.  One  of  the  constitutional  conditions  upon  which 
the  respondent  took  his  office  was  that  he  would  be  subject  to  re- 
moval by  the  governor,  under  article  12,  section  8.  Frey  v.  Michie, 
68  Mich.  328 ;  Fuller  v.  Attorney  General,  98  Id.  96. 
17 


258  TERMINATION   OF   THE   OFFICIAL  RELATION. 

But  conceding,  for  the  argument,  that  the  office  is  a  vested 
property  right,  what  is  the  "due  process  of  law"  to  which  the 
respondent  is  entitled  under  the  constitutions  of  this  State  and  of 
the  United  States?  Counsel  contend  that  it  can  mean  nothing  less 
than  a  trial  by  the  constitutional  judiciary,  and  perhaps  a  jury. 
If  so,  it  must  be  because  the  constitutional  office  differs  from  the 
statutory  office,  as  several  cases  hold  that  removals  from  the  latter 
may  be  made  without  the  intervention  of  courts.  Dullam  v.  Will- 
son,  53  Mich.  392;  Clay  v.  Stuart,  74  Id.  415;  WeUman  v.  Board 
of  Police,  84  Id.  558,  91  Id.  427 ;  Fuller  v.  Attorney  General,  98 
Id.  96.  But  this  language  of  the  constitutions  means  less  than 
that.  The  words  "due  process  of  law,"  as  used  in  the  Constitu- 
tion (article  6,  section  32),  mean  the  law  of  the  land,  by  which  are 
to  be  understood  laws  which  are  general  in  their  operation,  and 
not  special  acts  of  legislation  passed  to  affect  the  rights  of  particu- 
lar individuals  against  their  will,  and  in  a  way  which  the  same 
rights  of  other  persons  are  not  affected  by  existing  law.  Sears  v. 
Cottrell,  5  Mich.  251.  Due  process  is  not  necessarily  judicial  pro- 
cess. Administrative  process,  which  has  been  regarded  as  nt^ces- 
sary  in  government,  and  sanctioned  by  long  usage,  is  as  much  due 
process  as  any  other.  Weimer  v.  Bunbury,  30  Mich.  201.  In  this 
case  the  treasurer  of  the  city  of  Niles  did  not  collect  and  pay  over 
to  the  county  treasurer  certain  taxes,  whereupon,  in  accordance 
with  the  statute,  the  county  treasurer  issued  a  warrant  to  the 
sheriff,  commanding  him  to  levy  and  collect  the  amount  from  the 
property  of  the  city  treasurer.  It  was  held  not  to  invade  article  6, 
section  32. 

The  federal  decisions  also  qualify  the  claim  of  respondent 's  coun- 
sel. 

From  these  authorities,  it  appears  that  the  State  is  not  so  bound 
by  the  term  "due  process  of  law,"  in  the  Constitutions,  that  it  is 
impossible  for  it  to  invest  its  agents  with  its  offices  without  sub- 
jecting itself  to  the  delays  and  uncertainties  of  strict  judicial 
action  in  eases  of  emergency.  While  in  many  cases  (and,  under 
the  decision  in  the  case  of  Dullam  v.  WUlson,  perhaps  in  this) 
the  power  of  removal  is  a  limited  and  restricted  one,  to  be  exer- 
cised along  given  lines  and  within  prescribed  formalities,  as  already 
stated,  it  is  not  by  reason  of  an  inherent  right  of  property  in  the 
officer,  bringing  him  within  the  protection  of  the  fourteenth  amend- 
ment, but  because  of  the  limitations  of  the  law.     The  Michigan 


RICH  V.  JOCHIM.  259 

eases  already  cited  settle  for  this  State  the  authority  of  the  Gov- 
ernor, under  the  Constitution. 

It  is  said,  however,  that  the  Governor,  in  this  case,  made  his  own 
charges  and  employed  his  own  counsel,  and  is  therefore  to  sit  as 
judge  in  his  own  case.  One  of  the  duties  of  the  Governor  under 
section  8,  article  12,  is  to  investigate  the  State  offices.  He  is  given 
inquisitorial  power,  that  he  may  ascertain  their  condition,  for 
the  public  welfare.    No  other  means  is  provided  for  acquiring  the 

necessary  information The  law   does  not  require  a 

complainant,  nor  prevent  the  Governor  from  committing  the  inter- 
ests of  the  State  to  competent  lawyers,  official  or  otherwise.  Fin- 
ally, the  Governor  acts  judicially  upon  the  accumulated  evidence, 
and  sucK  explanations  by  way  of  defence  as  the  respondent  may 
offer.  In  this  respect  this  action  is  similar  to  that  discussed  in 
Fuller  v.  Attorney  General,  which  discussion  it  is  unnecessary 
to  repeat. 

We  come  next  to  the  charges.  It  is  contended  that  they  are  in- 
sufficient because  the  act  is  not  alleged  to  have  been  intentional, 
and  because  it  was  not  gross  neglect  to  permit  an  erroneous  canvass 
by  clerks. 

The  only  duties  of  the  Board  of  State  Canvassers  are  to  can- 
vass the  returns,  and  determine  and  certify  the  result,  of  elections. 
Theirs  is  the  culminating  act  of  the  army  of  persons  who  have  had 
to  do  with  the  receiving  and  counting,  recording  and  transmitting 
of  the  votes  which  signify  the  will  of  the  people.  Section  202  of 
Howell 's  Statutes  makes  it  the  duty  of  these  officers  to  attend,  and 
form  the  Board  of  State  Canvassers.  Their  duties  are  specifically 
pointed  out.  The  times  when  they  are  to  meet  are  provided  by  law. 
No  provision  is  made  for  deputies  or  clerks,  but  all  go  to  show  that 
this  important  duty  is  to  be  performed  by  them  in  person,  as  the 
certificate  signed'  by  them  asserts.  It  is  not  confided  to  inferior 
officials,  but  to  three  of  the  State  officers  of  greatest  dignity  and 
importance.  It  appears  to  have  been  the  design  of  the  lawmakers 
to  place  the  votes  of  the  people  in  the  keeping  of  the  most  re- 
sponsible officers  of  the  state;  and  no  argument  ought  to  be  nec- 
essary to  show  that  it  was  not  expected  that  the  returns  would, 
upon  their  arrival,  be  turned  over  to  an  irresponsible  clerk  in  the 
Secretary's  office  having  no  official  relation  to  the  canvass,  whose 
tabulation  should  be  the  canvass,  and  that  the  mere  signing  of  their 
three  names  to  his  production  should  constitute  a  full  compliance 


260  TERMINATION  OP  THE  OFFICIAL  HBLATIOK. 

on  the  part  of  these  oflScers  with  the  law  prescribing  the  duties  of 
the  State  canvassers.  Section  207  requires  an  examination  by  the 
board  of  the  several  statements  of  the  votes,  and  that  they  make  a 
statement  of  the  whole  number  of  votes  cast  for  each  office,  while 
section  209  makes  it  their  duty  to  certify  such  statements  to  be 
correct.  A  mere  failure  to  certify  could  be  called  "neglect." 
What  shall  be  said  of  it  when  the  certificate  is  made  without 
knowledge  of,  or  any  attempt  to  ascertain  the  fact?  An  officer 
is  elected  for  two  years.  Who  shall  count  and  keep  the  money 
of  the  State,  or  keep  its  great  seal  for  two  years,  is  not  a  matter  of 
vital  importance;  but  an  amendment  of  the  Constitution  changes, 
perhaps  for  all  time,  the  fundamental  law,  releasing  or  reclaiming 
by  the  people  some  right  or  power  over  the  Legislature  and  of- 
ficers, the  consequence  of  which  may  be  stupendous.  In  the  pres- 
ent instance,  it  was  a  matter  of  money, — several  thousand  dol- 
lars a  year;  and,  while  many  may  feel  that  the  defeat  of  this 
amendment  was  unfortunate,  it  is  vastly  more  unfortunate  to  have 
the  will  of  the  people  thwarted,  though  it  be  the  result  of  care- 
lessness only,  or  neglect  on  the  part  of  the  board  to  perform  th4f 
only  duty  imposed  upon  them  by  law.  Looking  at  the  circumstances 
from  his  official  standpoint,  the  Governor  may  well  have  said  this, 
though  not  willful,  was  only  possible  by  reason  of  the  grossest 
neglect  of  official  duty.  It  certainly  was  some  one's  duty  to  move 
at  once  with  a  view  to  the  correction  of  the  error,  and  the  pre- 
vention of  its  recurrence. 

While  there  is  an  inclination  upon  the  part  of  the  average 
American  to  accept  good  intentions  as  an  excuse  for  mistakes,  it 
is  not  for  the  general  public  good  that  responsible  public  offices 
shall  be  confided  or  remain  in  the  custody  of  those  whose  duties 
and  responsibilities  rest  so  lightly  upon  them  as  to  permit  the 
public  interests  to  be  injured  or  endangered  through  neglect;  and 
when  such  neglect,  from  the  gravity  of  the  case*  or  the  frequency 
of  the  instances,  becomes  so  serious  in  its  character  as  to  endanger 
or  threaten  the  public  welfare,  it  is  gross,  within  the  meaning  of 
the  law,  and  justifies  the  ^interference  of  the  executive,  upon 
whom  is  placed  by  this  amendment,  the  responsibility  of  keep- 
ing the  affairs  of  State  in  a  proper  condition.  We  cannot  think 
that  the  term  "gross  neglect"  means  any  intentional  official 
wrongdoing.  Such  acts  would  hardly  be  described  by  the  word 
"neglect." 

It  is  said  that  this  section  confides  great  power  to  th*i  Gover- 


STATE  EX  REL.  REDPIELD  V.   CHATBURN.  261 

nor.  This  is  true;  but  the  governorship  is  an  exalted  office, — 
one  which  ought  to  carry  with  it  a  presumption  of  integrity  of 
character  and  breadth  of  mind  commensurate  to  its  importance. 
It  would  be  a  sad  commentary  upon  free  government  if  it  were 
otherwise.  But  the  powers  of  the  Governor  are  carefully  re- 
stricted, and  there  is  no  occasion  to  pursue  the  elusive  phantoms 
of  possibility.  When  abuses  arise,  they  will  doubtless  be  speedily 
and  effectively  met. 

The  demurrer  must  be  overruled,  and  judgment  of  ouster  en- 
tered against  the  respondent. 
The  other  Justices  concurred. 

The  power  of  removal  is  not  a  part  of  the  executive  power  granted  to 
a  state  governor  by  the  state  constitution.  The  governor  may  not  therefore 
remove,  even  an  officer  whom  he  has  appointed  with  the  consent  of  the  sen- 
ate, unless  provision  for  such  removal  is  made  in  the  constitution  or  the 
statutes.  Field  v.  People,  3  111.  79.  This  rule  is  not  however  applied  to  the 
President  of  the  United  States  who  may  remove  an  officer  appointed  by 
him  with  the  consent  of  the  senate  even  though  such  officer  has  a  term 
fixed  by  statute.  Parsons  v.  United  States,  167  U.  S.  324;  Shurtleff  v.  Unit- 
ed States,  189  U.  S.  311. 


2.  In  Absence  of  Legislative  Provision. 

STATE  EX  REL.  HEDFIELD  V.  CHATBURN. 

Supreme  Court  of  Iowa.    June,  1884. 
63  Iowa  659. 

This  action  was  brought  under  the  provision  of  chapter  6,  title 
20,  of  the  Code,  to  test  the  right  of  defendant  to  hold  and  exer- 
cise the  office  of  sheriff  of  Shelby  county. 

It  is  alleged  in  the  petition  that  Redfield,  the  relator,  was,  on  the 
twenty-sixth  of  December,  1882,  duly  and  legally  appointed  sheriff 
of  said  county,  to  fill  the  vacancy  in  said  office,  occasioned  by  the 
death  of  H.  W.  Patterson,  who,  at  the  time  of  his  death,  was  the 
legally  elected  and  qualified  sheriff  of  said  county,  and  that  on 
the  sixth  day  of  June,  1883,  the  defendant  unlawfully  entered 
into  and  usurped  said  office,  and  continues,  without  any  legal 
warrant,  to  exercise  the  same,  by  serving  and  executing  the  writs, 
processes  and  orders  of  the  courts  of  said  county,  and  by  receiving 


262  TEEMINATION  OP  THE  OFFICIAL  RELATION. 

the  profits  and  emoluments  of  said  office.  And  the  prayer  is 
that  he  be  required  to  show  by  what  warrant  or  authority  he 
assumes  to  hold  said  office,  and  that  he  be  ousted  and  excluded 
therefrom. 

The  answer  of  the  defendant  admits  that  a  vacancy  occurred  in 
said  office  by  the  death  of  said  Patterson,  and  that  the  board  of 
supervisors  of  the  county,  at  the  time  named  in  the  petition,  ap- 
pointed said  Redfield  to  the  office,  and  that  he  duly  qualified.  But  it 
avers  that  the  board  of  supervisors,  on  the  sixth  day  of  June,  1883, 
as  they  had  the  legal  right  to  do,  removed  said  Redfield  from  said 
office,  and  appointed  defendant  thereto ;  that  he  was  duly  qualified 
that  he  entered  upon  and  continues  to  discharge  the  duties  of 
said  office  by  virtue  of  such  appointment. 

Reed,  J.  The  board  of  supervisors  adopted  the  order  for  the 
removal  of  the  relator  from  the  office,  without  any  formal  charge 
or  complaint  having  been  preferred  against  him.  It  does  not 
appear  that  he  had  any  notice  of  the  proceeding  until  after  the  or- 
der was  adopted,  nor  does  it  appear  upon  what  ground  or  for 
what  cause  the  board  assumed  to  remove  him.  We  will  assume, 
then,  that  the  board  proceeded  upon  the  theory  that  they  had  the 
power  and  right  to  remove  him  from  the  office  at  their  pleasure. 
Indeed,  the  claim  here  urged  in  support  of  their  action  is  that, 
having  appointed  him  to  the  office,  the  power  to  remove  him 
therefrom  at  their  pleasure  is  conferred  upon  the  board  by  section 
787  of  the  Code.  The  section  is  as  follows:  *'A  person  appointed 
as  herein  contemplated  may  be  removed  by  the  officer  appointing. 
And  no  person  can  be  appointed  who  has  been  removed  from  office 
within  one  year." 

It  occurs  in  the  chapter  of  the  Code  which  relates  to  vacancies 
in  civil  offices,  and  to  the  manner  in  which  such  vacancies  are  to 
be  filled.  It  is  provided  in  the  preceding  sections  of  the  chapter, 
that  an  office  becomes  vacant  on  the  happening  of  either  one  of  a 
number  of  enumerated  events,  before  the  expiration  of  the  term  of 
such  office,  and  that  vacancies  in  any  of  the  county  offices  are  to 
be  filled  by  the  board  of  supervisors.  Whatever  powers,  then,  are 
conferred  by  the  section  with  reference  to  the  removal  from  office 
of  a  person  who  has  been  appointed  to  fill  a  vacancy  in  the  office 
of  sheriff,  are  to  be  exercised  by  the  board  of  supervisors. 

The  single  question  presented  by  the  record  is,  whether  the 
board  had  the  power  to  remove  the  relator  from  the  office  in  the 


STATE  EX   REL.    REDFIELD  V,    CHATBURN.  263 

manner  in  which  they  attempted  to  remove  him;  and  we  have  to 
say  that  in  our  opinion  they  possessed  no  such  power. 

The  tenure  of  ofiSce  of  persons  appointed  to  fill  vacancies  in  office 
is  prescribed  and  defined  by  section  6  of  article  11  of  the  consti- 
tution of  the  state.  This  section  is  as  follows:  "In  all  cases  of 
election  to  fill  vacancies  in  office  occurring  before  the  expiration 
of  a  full  term,  the  person  so  elected  shall  hold  for  the  residue  of 
the  unexpired  term,  and  all  persons  appointed  to  fill  vacancies  in 
office  shall  hold  until  the  next  general  election,  and  until  their 
successors  are  elected  and  qualified." 

It  seems  to  us  that  there  can  be  no  doubt  or  dispute  as  to  the 
meaning  and  effect  of  this  language.  The  section  explicitly  defines 
and  describes  the  term  of  office  of  a  person  who  is  appointed  to  fill 
a  vacancy  in  an  office. 

When  the  relator  was  appointed  to  fill  the  vacancy  occasioned 
by  the  death  of  Patterson,  the  term  of  office  which  he  took  by 
virtue  of  such  appointment  extended  to  the  time  of  the  general 
election  in  the  year  1883,  and  until  the  election  and  qualification 
of  his  successor.  The  board  had  no  power  to  appoint  for  a  term 
either  longer  or  shorter  than  that.  Their  only  power  in  the  premises 
was  to  fill  the  vacancy.  Section  783.  But,  when  the  appointment 
was  made,  the  term  of  office  of  the  appointee  was  prescribed  by 
this  section  of  the  constitution,  and  he  acquired  the  right  to 
hold  and  exercise  the  office  and  enjoy  its  emoluments  during  the 
whole  of  such  term.  The  language  of  the  section  that  "he  shall 
hold  until  the  next  general  election,"  excludes  the  idea  that  his 
term  of  office  can  be  made  to  depend  upon  the  will  or  pleasure  of 
those  who  appointed  him  to  it.  It  imports  rather  that  he  holds 
the  office  by  a  certain  title,  and  for  a  definite  term. 

It  is  not  doubted  that  he  accepted  the  office  subject  to  the  right 
of  the  state  to  have  him  removed  for  any  of  the  causes  which  by 
law  are  made  grounds  for  the  removal  from  office  of  a  public  officer. 
But  these  causes  for  removal  are  all  defined  by  statute.  Section 
746.  As  it  is  not  claimed  that  the  removal  was  made  for  any  of 
the  causes  enumerated  in  said  section,  we  need  not  inquire  whether 
the  board  of  supervisors  have  power  to  remove  him  for  those 
causes.  "We  are  well  satisfied  that  they  had  no  power  to  remove 
him  at  them  mere  pleasure ;  and,  as  this  is  the  only  ground  on 
which  they^^umed  to  make  the  order  of  removal,  it  is  void.  The 
judgment  of  the  district  court  is  therefore, 

./.  Affirmed. 


264  TERMINATION  OF  THE  OFFICIAL  RELATION. 

EX  PARTE   CHARLES  LEHMAN. 

Supreme  Court  of  Mississippi.    April,  1883. 
60  Mississippi  967. 

Chalmers,  J.,  delivered  the  opinion  of  the  court. 

The  order  of  the  court,  for  disregarding  which  the  relator  was 
imprisoned  as  for  a  contempt,  was  unmistakably  an  order  of  re- 
moval or  suspension  from  office.  It  was  so  treated  and  regarded 
by  the  judge  who  made  it  and  by  the  officer  who  disobeyed  it, 
and  such  it  plainly  was. 

If  there  exists  under  any  circumstances  power  in  the  circuit 
courts  of  this  State  to  remove  or  suspend  from  office  the  clerks  of 
these  courts  before  conviction  by  a  petit  jury,  their  orders  assuming 
to  do  so  must  be  obeyed  until  reversed,  however  wrongful  they 
may  be  in  the  particular  case;  since  it  is  only  where  a  court  has 
undertaken  to  make  an  order  which  it  is  without  jurisdiction  to 
make  in  any  state  of  the  case  that  its  commands  may  be  disre- 
garded with  impunity.  Ex  parte  Wimherly,  57  Miss.  445.  The 
question  presented,  therefore,  is  this.  Can  a  circuit  court  of  this 
State  by  its  own  order,  without  a  trial  and  conviction  of  any 
offence  remove,  or  temporarily  suspend  from  office,  for  any  cause 
whatever,  the  circuit  clerk  of  a  county? 

We  have  no  hesitation  in  answering  this  question  in  the  nega- 
tive— circuit  clerks  with  us  are  constitutional  officers  elected  by 
the  people  for  fixed  terms  of  office.  By  sect.  26  of  Art.  VI.  of  the 
Constitution  they  are  made  amenable  to  indictment  or  prosecution 
by  a  grand  jury,  and  trial  by  a  petit  jury  for  willful  neglect  of 
duty  or  misdemeanor  in  office,  and  are  to  be  removed  from  office 
when  convicted;  and  this  constitutional  clause  is  put  in  operation 
and  made  more  effective  by  sect.  417  of  the  Code  of  1880,  which 
makes  it  the  duty  of  the  court,  upon  conviction,  to  adjudge  that 
the  party  be  removed  from  office,  and  provides  that  the  vacancy 
shall  be  filled  as  in  other  cases.. 

Plainly  these  constitutional  and  statute  methods  of  removal 
are  exclusive  of  all  others.  The  Legislature  has  not  attempted 
in  any  portion  of  our  statute  laws  to  provide  for  the  suspension 
from  office  of  any  officer  after  indictment  and  pending  trial  for  a 
criminal  offence  or  a  misdemeanor  in  office.  Such  a  law,  if  enacted, 
and  if  it  operated  as  a  practical  removal  from  office  before  con- 
viction, would  be  of  doubtful  constitutionality,  since  it  would  give 


EX  PARTE  CHAELES  LEHMAN.  265 

to  an  indictment  that  effect  which  the  Constitution  attaches  to 
conviction  only,  and  inflict  punishment  before  trial.  The  validity 
of  such  a  statute  was  upheld  in  Allen  v.  The  State,  32  Ark.  241, 
but  repudiated  in  Lowe  v.  The  Commonwealth,  4  Mete.  (Ky.) 
241 ;  Bunn  v.  Grove,  6  Bush,  3. 

Certainly  in  the  absence  of  legislation  no  such  power  can  reside 
in  the  circuit  court.  It  is  true  that  the  clerk  is  in  many  respects 
the  arm  of  the  court,  the  instrument  by  which  it  evidences  its  will 
and  perpetuates  a  memorial  of  its  proceedings,  but  he  is  an  arm 
created  and  an  instrument  furnished  by  the  common  master  of 
both,  who  has  provided  the  appropriate  and  exclusive  method  by 
which  each  shall  be  dismissed  from  his  service,  and  it  is  no  more 
within  the  power  of  the  judge  to  remove  the  clerk  in  violation 
of  that  method  than  it  is  within  the  power  of  the  clerk  to  remove 
the  judge. 

The  circumstances  of  the  present  case  seem  to  have  presented 
in  their  inception  a  plausible  excuse  for  the  action  taken  by  the 
circuit  judge,  or,  at  least,  to  demonstrate  that  his  action  was 
prompted  by  the  desire  to  protect  the  public  interests.  Four  in- 
dictments, for  falsifying  the  records  of  the  court  by  issuing  forged 
witness  certificates  in  State  cases  for  the  corrupt  and  felonious 
purpose  of  defrauding  the  county  had  already  been  presented 
by  the  grand  jury  against  the  clerk,  and  while  this  proceeding 
by  habeas  corpus  was  pending  in  the  court  below  nine  more  in- 
dictments for  similar  offenses  were  brought  in.  The  clerk  was  in 
the  official  possession  of  these  indictments  and  of  all  the  evidences 
by  which  the  State  proposed  to  establish  his  guilt;  but  he  offered 
to  turn  these  over  to  the  custody  of  the  appointee  of  the  court, 
and  to  yield  possession  of  the  office  itself  so  far  as  to  permit  its 
duties  in  relation  to  the  indictments  against  himself  to  be  dis- 
charged by  another.  The  court  declined  to  modify  its  order  in  the 
manner  suggested  and  insisted  upon  his  unconditional  obedience  to 
the  order  as  entered ;  by  which  order  he  was  peremptorily  removed 
or  suspended  from  every  function  and  privilege  of  the  office, 
deprived  of  all  its  emoluments,  and  another  person  was  appointed 
in  his  stead. 

This  order  is  sought  to  be  upheld  by  sect.  2279  of  the  Code, 
which  authorizes,  the  appointing  of  a  clerk  or  sheriff  pro  tempore 
when  there  is  a  vacancy  in  the  office,  or  the  incumbent  is  absent  or 
unable  to  or  refuses  to  discharge  the  duties  of  the  position ;  but  it 
is  manifest  that  the  section  has  no  application  to  the  facts  here 


266  TERMINATION   OF   THE  OFFICIAL   RELATION. 

existing.  The  clerk  here  was  not  absent  nor  did  he  refuse  nor 
was  he  unable  to  discharge  the  duties  of  the  position,  and  how- 
ever unfit  he  might  be  morally  to  occupy  such  a  place  this  was  a 
question  for  the  voters  of  the  county  and  not  for  the  judge. 

If  convicted  the  law  removes  him;  if  acquitted,  even  upon  the 
doctrine  of  reasonable  doubt,  he  must  remain  in  oflSce  until  the 
expiration  of  his  term.  The  utmost  power  of  the  court  was  to 
take  care  that  he  should  not  use  his  official  position  to  obstruct  his 
own  trial  or  to  remove  the  evidence  of  his  guilt,  and  with  this 
view  its  order  should  have  been  modified  in  the  manner  suggested 
by  the  relator.  It  may  be  troublesome  properly  to  execute  such 
an  order,  but  while  no  trouble  is  too  great  to  insure  justice  and 
the  infliction  of  proper  punishment,  it  is  better  that  the  greatest 
criminal  should  go  unpunished  than  that  the  Constitution  should 
be  violated  by  those  whose  first  and  highest  duty  is  to  guard  and 
protect  it. 

If  it  need  citation  of  authorities  to  show  that  no  court  can  re- 
move or  suspend  a  constitutional  officer  save  after  conviction  of  an 
offence  which  authorizes  it,  it  is  found  in  many  cases  and  de- 
nied by  none.  Eyde  v.  The  State,  52  Mass.  675 ;  Page  v.  Hardin, 
8  B.  Mon.  673;  Newson  v.  Cock,  44  Miss.  362;  Lowry  v.  Tullis,  32 
Miss.  147;  Honey  v.  Graham,  89  Tex.  11;  Cury  v.  Stewart,  8 
Bush,  563. 

Our  conclusion  is  that,  inasmuch  as  there  is  no  state  of  facts 
which  will  make  valid  an  order  of  removal  before  conviction,  the 
relator  was  not  guilty  of  contempt  in  disregarding  the  order  made 
in  this  case.  Wherefore,  the  judgment  of  the  court  below  is  re- 
versed and  the  relator  discharged. 


THE  STATE  EX  REL.  ATTORNEY-GENERAL  V.  SAVAGE. 

Supreme  Court  of  Alabama.    November,  1889. 
89  Ala.  1. 

Clopton,  J.  This  case,  which  is  an  impeachment  proceeding 
against  R.  R.  Savage,  judge  of  probate  of  Cherokee  county,  insti- 
tuted in  this  court,  is  submitted  on  a  motion  to  quash  the  informa- 
tion on  the  fourth,  fifth,  ninth  and  tenth  grounds,  and  on  a  de- 
murrer to  the  other  grounds. 


ATTORNEY  GENERAL  V.  SAVAGE.  267 

In  respect  to  the  impeaeliinent  of  public  officers,  a  jurisdiction 
not  theretofore  existing  is  created  by  the  Constitution  and  stat- 
utes, and~the  mode  of  its  exercise  provided,  to  which  the  proceeding 
must  substantially  conform.  Section  4840  of  Code  1886  provides : 
* '  It  shall  be  the  duty  of  the  Attorney-General  to  institute  proceed- 
ings under  this  chapter,  and  prosecute  the  same  against  any  of- 
ficer included  in  section  two,  article  seven  of  the  Constitution 
[which  includes  judges  of  probate] ,  when  the  Supreme  Court  shall 
so  order,  or  when  the  Governor  shall,  in  writing,  direct  the  same, 
or  when  it  appears  from  the  report  of  any  grand  jury  that  any 
such  officer  ought  to  be  removed  from  office,  for  any  cause  men- 
tioned in  the  first  section  of  this  chapter."  The  causes  mentioned 
are:  "Willful  neglect  of  duty,  corruption  in  office,  habitual 
drunkenness,  incompetency,  or  any  offense  involving  moral  turpi- 
tude, while  in  office,  or  committed  under  color  thereof,  or  connected 
therewith."  Section  4818.  Whether  such  proceedings  shall  be 
instituted  is  not  rested  on  the  discretion  of  the  Attorney-General; 
authorization  in  one  of  the  statutory  modes  is  essential  to  uphold 
the  proceeding.  The  present  information  purports  to  be  founded 
on  the  report  of  a  grand  jury. 

The  fourth  and  fifth  objections  are  substantially  the  same, 
though  varied  in  form;  namely,  it  does  not  appear  that  the  al- 
leged report  was  made  by  a  grand  jury  of  Cherokee  county  to  the 
Circuit  Court  for  that  county.  The  information  recites  that  the 
proceeding  is  instituted  on  the  report  of  a  duly  organized  grand 
jury  of  Cherokee  county;  that  it  was  made  in  the  Circiut  Court 
for  the  July  term,  1889,  and  entered  on  the  minutes  of  the  court, 
and  that  a  certified  copy  which  accompanies  the  information,  was 
transmitted  to  the  Attorney-General.  When  the  information  re- 
fers to  the  report  of  a  grand  jury,  and  is  accompanied  by  it,  as  the 
authorization,  this  is  prima  facie  sufficient  to  uphold  the  proceed- 
ing without  the  contents  being  specifically  set  forth  in  the  infor- 
mation itself. 

The  ninth  and  tenth  grounds  of  the  motion  are,  that  the  facts 
constituting  the  misconduct  with  which  the  defendant  is  charged 
are  not  set  forth  in  the  report  of  the  grand  jury,  as  required  by  the 
statute.  Section  4839  of  the  Code  declares:  "It  shall  be  the 
duty  of  every  grand  jury  to  investigate  and  make  diligent  in- 
quiry concerning  any  alleged  misconduct  or  incompetency  of  any 
public  officer  in  the  county,  which  may  be  brought  to  their  notice ; 
and  if,  on  such  investigation  and  inquiry,  they  find  that  such  of- 


268  TERMINATION  OP  THE  OFFICIAL  RELATION. 

ficer,  for  any  cause  mentioned  in  this  chapter,  ought  to  be  removed 
from  office,  they  shall  so  report  to  the  court,  setting  forth  the 
facts,  which  shall  be  entered  on  the  minutes. ' '  It  was  held  in  State 
V.  Sewell,  64  Ala.  235,  that  setting  forth  the  facts  in  the  report 
is  essential  to  the  authority  of  the  prosecuting  officer  to  institute 
such  proceeding;  and  though  the  facts  need  not  be  set  forth  with 
the  accuracy  usually  required  in  pleading,  unless  the  report  sus- 
tains a  succinct  statement,  showing  the  nature  and  description 
of  the  acts  of  the  official  misconduct  charged,  it  is  insufficient  to 
uphold  the  proceedings.  In  that  case,  the  defendant  was  charged 
with  extortion  and  corruption  in  office,  which  are  conclusions  of 
law  from  facts  which  may  differ  in  different  cases.  The  report 
of  the  grand  jury  on  which  the  present  information  is  based,  is 
as  follows:  "In  the  discharge  of  our  duties  as  a  grand  jury,  we 
find,  and  do  hereby  report,  that  R.  R.  Savage,  judge  of  probate 
in  and  for  the  county  of  Cherokee,  ought  to  be  impeached  and  re- 
moved from  such  office,  for  and  on  account  of  his  habitual  drunken- 
ness while  in  such  office,  prior  to  and  down  to  the  time  of  making 
this  report."  No  greater  fulness  of  description  of  the  acts,  and 
less  accuracy  of  statement,  is  required  in  such  report,  than  in  an 
indictment. 

The  motion  is  overruled  as  to  fourth,  fifth,  ninth  and  tenth 
grounds,  and  the  demurrer  to  the  other  grounds  is  sustained. 


3.    Incident  to  Power  of  Appointment. 

EX  PARTE,  IN  THE  MATTER  OF  HENNEN. 

Supreme  Court  of  the  United  States.    January,  1839. 
13  Peters  230. 

Mr.  'Justice  Thompson  delivered  the  opinion  of  the  court. 

This  is  an  application  for  a  rule  upon  the  Honorable  Philip 
K.  Lawrence,  Judge  of  the  District  Court  of  the  United  States 
for  the  eastern  district  of  Louisiana,  to  show  cause  why  a  mnn- 
damus  should  not  be  issued  against  him,  requiring  him  to  show 
cause  why  he  should  not  restore  Duncan  H.  Hennen  to  the  office  of 
clerk  of  the  said  district  court. 


EX  PARTE  IN  THE  MATTER  OF  HENNEN.  269 

The  petition  sets  forth  that  the  petitioner,  Duncan  H.  Hennen, 
on  the  21st  day  of  February,  in  the  year  1834,  was  duly  appointed 
clerk  of  the  said  court,  by  the  Honorable  Samuel  H.  Harper, 
judge  of  the  said  court.  That  ^  commission  was  duly  issued  under 
the  hand  and  seal  of  the  judge.  That  he  accepted  the  appointment, 
and  gave  the  bond  with  sureties  required  by  law,  and  thereupon 
entered  upon  the  duties  of  the  ofiSce,  and  continued  to  discharge 
the  same  methodically,  skillfully  and  uprightly,  and  to  the  satis- 
faction of  the  District  Court.  That  by  virtue  of  said  appointment, 
and  of  the  provisions  of  the  statute  in  such  case  made  and  pro- 
vided, he  was  from  the  period  of  the  organization  of  the  circuit 
court  of  the  United  States  for  the  said  district  of  Louisiana,  in 
like  manner  the  clerk  of  said  circuit  court ;  and  performed  all  the 
duties  of  said  oflfice.  That  he  continued  to  perform  the  said 
duties,  and  receive  the  emoluments,  and  in  all  respects  to  hold 
and  occupy  said  offices,  until  on  or  about  the  18th  day  of  May, 
in  the  year  1838,  when  he  received  a  communication  from  the  Hon- 
orable Philip  K.  Lawrence,  then  and  now  the  judge  of  the  said 
district  court  of  the  United  States,  for  the  said  eastern  district  of 
Louisiana,  apprizing  him  of  his  removal  from  the  said  office  of 
clerk,  and  the  appointment  of  John  Winthrop  in  his  place.  And  in 
this  communication  he  states,  unreservedly,  that  the  business  of 
the  office  for  the  last  two  years  has  been  conducted  promptly, 
skilfully,  and  uprightly,  and  that,  in  appointing  Mr.  Winthrop  to 
succeed  him,  he  had  been  actuated  purely  by  a  sense  of  duty  and 
feelings  of  kindness  towards  one  whom  he  had  long  known,  and 
between  whom  and  himself  the  closest  friendship  had  ever  sub- 
sisted. And  that,  as  his  capacity  to  fill  the  office  cannot  be  ques- 
tioned, he  felt  that  he  was  not  exercising  any  unjust  preference, 
in  bestowing  on  him  the  appointment.  The  petition  further  states 
that  Judge  Lawrence  did,  on  or  about  the  18th  day  of  May,  in  the 
year  1838,  execute  and  deliver  to  the  said  John  Winthrop  a  com- 
mission or  appointment,  as  clerk  of  the  said  district  court  for 
the  eastern  district  of  Louisiana;  and  that  he  does  to  a  certain 
extent  execute  the  duties  appertaining  to  the  said  office,  and  is 
recognized  by  the  said  judge  as  the  only  legal  clerk  of  the  said 
district  court. 

The  petition  further  states,  that  on  or  about  the  21st  day  of 
May,  in  the  year  1838,  the  circuit  court  of  the  United  States  for 
the  eastern  district  of  Louisiana,  met  according  to  law;  when  the 
Honorable  John  McKinley,  one  of  the  associate  justices  of  the 


270  TERMINATION   OP  THE  OFFICIAL   RELATION. 

Supreme  Court  of  the  United  States,  and  the  said  Judge  Law- 
rence, appeared  as  judges  of  the  said  circuit  court,  and  that  the 
petitioner  and  John  Winthrop  severally  presented  themselves,  each 
claiming  to  be  rightfully  and  lawfully  the  clerk  of  the  said  cir- 
cuit court;  that  the  judges  differed  in  opinion  upon  the  said  ques- 
tion of  right,  and  being  unable  to  concur  in  opinion,  neither  of 
said  parties  was  admitted  to  act  as  clerk,  or  recognized  by  the 
court  as  being  rightful  clerk;  and  no  business  was  or  could  be 
transacted,  and  the  court  adjourned. 

The  petitioner  claims  that  he  was  legally  and  in  due  form  ap- 
iwinted  clerk  of  said  district  court;  and  by  virtue  of  said  ap- 
pointment became  lawfully  clerk  of  said  circuit  court.  And  that 
he  has  never  resigned  the  said  offices,  or  been  legally  removed 
from  the  same,  or  either  of  them.  But  that  he  is  illegally  kept 
out  of  the  said  office  of  clerk  of  the  said  district  court,  by  the  illegal 
acts  and  conduct  of  the  said  Philip  K.  Lawrence,  judge  as  afore- 
said, and  the  said  John  Winthrop,  claiming  to  hold  said  office 
under  an  appointment  from  the  said  Judge  Lawrence ;  which  he  is 
advised  and  believes  is  illegal  and  void.  And  prays  that  the  court 
will  award  a  writ  of  mandamus,  directed  to  the  said  judge  of  the 
said  district  court,  commanding  him  forthwith  to  restore  the  peti- 
tioner to  the  office  of  clerk  of  the  said  district  court  for  the  eastern 
district  of  Louisiana. 

The  district  judge  has  appeared  by  counsel  to  oppose  this  mo- 
tion, and  the  facts  set  out  in  the  petition  have  not  been  denied. 
And  the  quesfion  presented  to  the  court  is,  whether  the  petitioner 
has  shown  enough  to  entitle  him  to  a  rule  to  show  cause  why  a 
mandamus  should  not  issue.  If  he  has  been  legally  removed  from 
the  office  of  clerk,  there  are  no  grounds  upon  which  the  said 
motion  can  be  sustained. 

By  the  Constitution  of  the  United  States,  art.  2,  sec.  2,  it  is  pro- 
vided that  the  President  shall  nominate,  and  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint  certain  officers 
therein  designated,  and  all  other  officers  of  the  United  States, 
whose  appointments  are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law;  but  the  Congress  may  by  law 
vest  the  appointment  of  such  inferior  officers,  as  they  shall  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments.  The  appointing  power  here  designated  in 
the  latter  part  of  the  section  was  no  doubt  intended  to  be  exercised 
by  the  department  of  the  government  to  which  the  officer  to  be  ap- 


EX  PARTE  IN  THE   MATTER  OF   HENNEN.  271 

pointed  most  appropriately  belonged.  The  appointment  of  clerks 
of  court  properly  belongs  to  the  courts  of  law ;  and  that  a  clerk  is 
one  of  the  inferior  officers  contemplated  by  this  provision  in  the 
Constitution  cannot  be  questioned.  Congress,  in  the  exercise  of  the 
power  here  given,  by  the  act  of  the  24th  of  September,  1789,  es- 
tablishing the  judicial  courts  of  the  United  States,  1  Story's  Laws, 
U.  S.  56,  s.  7,  declares  that  the  Supreme  Court,  and  the  district 
courts  shall  have  power  to  appoint  clerks  of  their  respective  courts ; 
and  that  the  clerk  for  each  district  court  shall  be  clerk  also  of  the 
circuit  court  in  such  district. 

Such  then  being  the  situation  in  which  the  petitioner  stood 
prior  to  the  21st  of  May,  1838,  the  question  arises  whether  the 
district  judge  had  power  to  remove  him,  and  appoint  another  clerk 
in  his  place. 

The  Constitution  is  silent  with  respect  to  the  power  of  removal 
from  office,  where  the  tenure  is  not  fixed.  It  provides,  that  the 
judges,  both  of  the  supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behavior.  But  no  tenure  is  fixed  for  the  office 
of  clerks.  Congress  has  by  law  limited  the  tenure  of  certain  of- 
ficers to  the  term  of  four  years,  3  Story,  1790;  but  expressly 
providing  that  the  officer  shall,  within  that  term,  be  removable 
at  pleasure;  which  of  course,  is,  without  requiring  any  cause  for 
such  removal.  The  clerks  of  courts  are  not  included  within  this 
law,  and  there  is  no  express  limitation  in  the  Constitution,  or  laws 
of  Congress,  upon  the  tenure  of  the  office. 

All  offices,  the  tenure  of  which  is  not  fixed  by  the  Constitution 
or  limited  by  law,  must  be  held  either  during  good  behavior,  or 
(which  is  the  same  thing  in  contemplation  of  law)  during  the 
life  of  the  incumbent;  or  must  be  held  at  the  will  and  discre- 
tion of  some  department  of  the  government,  and  subject  to  re- 
moval at  pleasure. 

It  cannot,  for  a  moment,  be  admitted,  that  it  was  the  intention 
of  the  Constitution,  that  those  offices  which  are  denominated  in- 
ferior offices  should  be  held  during  life.  And  if  removable  at 
pleasure,  by  whom  is  such  removal  to  be  made.  In  the  absence 
of  all  constitutional  provision,  or  statutory  regulation,  it  would 
seem  to  be  a  sound  and  necessary  rule,  to  consider  the  power  of 
removal  as  incident  to  the  power  of  appointment. 

In  all    .     .     .     departments  power  is  given  to  the  secretary 


272  TERMINATION   OP  THE  OFFICIAL  RELATION. 

to  appoint  all  necessary  clerks  j  1  Story,  48;  and  although  no 
power  to  remove  is  expressly  given,  yet  there  can  be  no  doubt, 
that  these  clerks  hold  their  office  at  the  will  and  discretion  of  the 
head  of  the  department.  It  would  be  a  most  extraordinary  con- 
struction of  the  law,  that  all  of  these  offices  were  to  be  held  during 
life,  which  must  inevitably  follow,  unless  the  incumbent  was  re- 
movable at  the  discretion  of  the  head  of  the  department:  the 
President  has  certainly  no  power  to  remove.  These  clerks  fall 
under  that  class  of  inferior  officers,  the  appointment  of  which 
the  Constitution  authorizes  Congress  to  vest  in  the  head  of  the 
department.  The  same  rule,  as  to  the  power  of  removal,  must 
be  applied  to  offices  where  the  appointment  is  vested  in  the  Presi- 
dent alone.  The  nature  of  the  power,  and  the  control  over  the 
officer  appointed,  does  not  at  all  depend  on  the  source  from  which 
it  emanates.  The  execution  of  the  power  depends  upon  the  au- 
thority of  law,  and  not  upon  the  agent  who  is  to  administer  it. 
And  the  Constitution  has  authorized  Congress  in  certain  cases  to 
vest  this  power  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments ;  and  all  inferior  officers  appointed  under 
each,  by  authority  of  law,  must  hold  their  office  at  the  discretion 
of  the  appointing  power.  Such  is  the  settled  usage  and  practical 
construction  of  the  Constitution  and  laws,  under  which  these  of- 
fices are  held. 

And  the  same  rule  has  governed  the  decisions  of  the  state  courts 
in  this  country,  whenever  the  power  of  appointment  and  tenure  of 
office  has  been  drawn  into  discussion.  The  questions  have  been 
governed  by  the  constructions  given  to  the  constitution  and  laws 
of  the  state  where  they  arose. 

The  law  giving  the  district  courts  the  power  of  appointing  their 
own  clerks,  does  not  prescribe  any  form  in  which  this  shall  be 
done.  The  petitioner  alleges  that  he  has  heard  and  believes  that 
Judge  Lawrence  did,  on  the  18th  day  of  May,  1838,  execute  and 
deliver  to  John  Winthrop,  a  commission  or  appointment  as  clerk 
of  the  district  court  of  the  eastern  district  of  Louisiana,  and  that 
he  entered  upon  the  duties  of  the  office,  and  was  recognized  by 
the  judge  as  the  only  legal  clerk  of  the  district  court.  And  in 
addition  to  this,  notice  was  given  by  the  judge  to  the  petitioner, 
of  his  removal  from  the  office  of  clerk,  and  the  appointment  of 
Winthrop  in  his  place;  all  which  was  amply  sufficient,  if  the 


IN  THE  MATTER  OF  GUDEN.  273 

office  was  held  at  the  discretion  of  the  court.  The  power  vested 
in  the  court  was  a  continuing  power;  and  the  mere  appointment 
of  a  successor  would,  per  se,  be  a  removal  of  the  prior  incumbent 
so  far  at  least  as  his  rights  were  concerned.  How  far  the  rights 
of  third  persons  may  be  affected  is  unnecessary  now  to  consider. 
There  could  not  be  two  clerks  at  the  same  time.  The  offices  would 
be  inconsistent  with  each  other,  and  could  not  stand  together. 
If  the  power  to  appoint  a  clerk  was  vested  exclusively  in  the 
district  court,  and  the  office  was  held  at  the  discretion  of  the  court, 
as  we  think  it  was;  then  this  court  can  have  no  control  over  the 
appointment  or  removal,  or  entertain  any  inquiry  into  the  grounds 
of  removal.  If  the  judge  is  chargeable  with  any  abuse  of  his 
power,  this  is  not  the  tribunal  to  which  he  is  amenable ;  and  we  have 
no  right  to  judge  upon  this  matter,  or  power  to  afford  redress  if 
any  is  required,  we  abstain  from  expressing  any  opinion  upon 
that  part  of  the  case. 

The  motion  is  accordingly  denied. 


4.    Removal  for  Cause. 

IN  THE  MATTER  OF  GUDEN. 

Court  of  Appeals  of  New  York.    June,  1902. 
171  N.  Y.  529. 

Charles  Guden,  the  petitioner,  was  elected  sheriff  of  Kings 
county  at  the  election  in  1901,  and  thereafter  duly  qualified  and 
took  office.  Subsequently,  charges  having  been  preferred  against 
him,  alleging  acts  of  misconduct  committed  prior  to  his  election, 
the  governor,  after  a  hearing,  ordered  his  removal  from  office, 
and  appointed  Norman  S.  Dike,  in  his  stead,  who,  acting  under 
his  certificate  of  appointment,  took  possession  of  certain  books 
and  papers  appertaining  to  the  office  of  sheriff.  The  petitioner, 
asserting  that  his  removal  was  violative  of  the  provisions  of  the 
state  constitution,  and  so,  ineffective,  instituted  this  proceeding. 

Parker,  Ch  J. 

•  •••■••••• 

18 


274  TEEMINATION  OF  THE  OFFICIAL  RELATION'. 

The    power     of     removal    ...    in    this   state 

.  .  .  has  been  invested  in  the  governor  by  the  people.  Consti- 
tution, art.  IV,  §  1.  The  constitution  further  specifically  provides 
and  has  since  1821  in  effect,  and  since  1846  in  precisely  the  same 
words — ^that  "the  governor  may  remove  any  officer,  in  this  section 
mentioned,  (sheriffs,  clerks  of  counties,  district  attorneys  and  reg- 
isters in  counties  having  registers),  within  the  term  for  which 
he  shall  have  been  elected;  giving  to  such  officer  a  copy  of  the 
charges  against  him;  and  an  opportunity  of  being  heard  in  his 
defense."  Art.  X,  §1. 

If  the  intent  of  the  framers  of  the  constitution  was  not  plainly 
apparent  from  the  language  of  the  clause,  all  doubt  would  be  re- 
moved by  an  examination  of  the  debates  of  the  constitutional  con- 
ventions of  1821  and  1846. 

Prior  to  the  constitution  of  1821  the  office  of  sheriff  had  not  been 
elective  but  an  appointive  one.  Under  the  constitution  of  1777 
the  appointments  were  made  by  a  council  consisting  of  the  gov- 
ernor and  one  member  from  each  of  the  four  great  senate  dis- 
tricts of  the  state.  The  manner  in  which  the  power  was  exercised 
became  the  subject  of  such  grave  abuse  that  the  convention  of 
1821  set  about  accomplishing  a  needed  correction.  The  final  result 
was  that  the  electors  of  the  several  counties  were  authorized  to 
choose  the  sheriffs  by  ballot,  and  upon  the  governor  was  con- 
ferred the  power  of  removal  in  language  substantially  like  that 
in  existence  in  the  constitution  of  to-day. 

An  examination  of  the  debates  of  that  convention  seems  to 
indicate  that  the  propriety  of  vesting  the  power  of  removal  in 
the  governor  was  not  questioned.  A  difference  of  opinion  did  pre- 
vail as  to  the  advisability  of  requiring  notice  and  an  opportunity 
to  be  heard  before  removal. 

The  suggestion  that,  if  the  courts  do  not  interfere,  some  execu- 
tive may  proceed  in  disregard  of  those  principles  which  courts  of 
impeachments  have  established,  should  not  be  given  weight,  for 
the  ability  to  act  quickly  in  the  removal  of  administrative  officers 
and  clerks  is  as  important  in  the  conduct  of  government  as  in  the 
management  of  a  gigantic  corporation  or  large  individual  enter- 
prise. 

Of  the  manner  in  which  that  power  has  been  exercised  there 


IN  THE  MATTER  OP  GUDEN.  275 

has  been  but  little  complaint  in  the  more  than  eighty  years  that 
have  passed  since  the  power  was  first  granted.  Delegate  Becker 
of  the  constitutional  convention  of  1824,  seems  to  have  been  of  the 
opinion  that  the  governor  should  not  have  an  absolute  and  uncon- 
ditional power  of  removal  that  might  be  exercised  without  a  suffi- 
cient reason,  and  so  he  proposed  in  due  form  an  amendment  to  the 
section  of  the  constitution  under  consideration,  which  should  in- 
sert therein  after  the  word  "remove"  the  words  "for  good  cause 
shown,"  but  the  proposed  amendment  was  rejected,  and  without 
debate,  so  far  as  the  record  discloses. 

But  had  there  been  large  complaint  concerning  the  exercise  of 
the  power  the  method  of  removal  inbedded  in  the  constitution 
niust  govern  until  the  people  change  it.  It  authorizes  the  governorj 
to  remove,  as  we  have  seen,  after  "giving  to  such  officer  a  copy 
of  the  charges  against  him  and  an  opportunity  of  being  heard  in 
his  defense,"  and  an  examination  of  the  record  discloses  that 
such  requirements  of  the  constitution  were  fully  complied  with 
in  this  case. 

Therefore,  we  do  not  examine  into  the  merits,  for  they  do 
not  concern  the  courts,  inasmuch  as  both  the  power  to  decide 
whether  Guden  should  be  removed  from  the  office  of  sheriff,  and  the 
responsibility  for  a  right  decision,  rest  solely  upon  the  governor 
of  the  state. 

The  order  should  be  affirmed,  with  costs. 

O'Brien,  J.  I  concur  with  Chief  Judge  Parker  in  the  result. 
My  conclusion,  however,  is  based  on  grounds  somewhat  different 
from  those  stated  in  his  opinion,  and,  briefly,  my  reasons  are 
these: 

It  is  admitted  on  all  sides  that  before  a  removal 

can  be  made  the  governor  must  acquire  jurisdiction.  These  must 
be  a  charge  of  some  official  misconduct  on  the  part  of  the  officer 
and  he  must  have  been  served  with  a  copy  of  the  charge  and 
given  an  opportunity  to  be  heard.  A  mere  statement  in  writing, 
of  some  act  or  omission  on  the  part  of  the  officer,  that  in  no 
sense  can  constitute  misconduct,  would  not  be  a  charge  within  the 
meaning  of  this  provision  of  the  constitution.  It  is  not  necessary 
that  the  charge  be  stated  with  all  the  precision  of  a  pleading  in 
a  court  of  law  or  equity.  The  governor  has  power  to  prescribe  his 
own  rules  of  procedure  and  determine  whether  the  charge  is 
sufficiently  specific  or  otherwise,  but  there  must  be  some  act  or 


276  TERMINATION  OP  THE  OFFICIAL  RELATION. 

omission  on  the  part  of  the  officer  stated  in  the  papers,  which 
amounts  to  official  misconduct,  and  when  such  a  paper  is  presented 
to  the  governor  he  acquires  jurisdiction  of  the  person  of  the  officer 
and  of  the  subject  matter  of  the  charge.  For  any  error  of  law 
or  fact  that  he  may  commit  in  the  progress  of  the  investigation 
there  is  no  power  of  review  in  the  courts.  The  courts  can  inquire 
with  reference  to  a  single  question  only  and  that  is  the  jurisdiction ; 
but  the  power  to  inquire  as  to  jurisdiction  necessarily  implies 
the  right  to  examine  into  the  nature  and  character  of  the  charge, 
in  order  to  see  whether  it  is  in  any  proper  sense  a  charge  at  all 
within  the  meaning  of  the  constitution. 

In  my  opinion,  the  charges  in  this  case  were  sufficient  to  confer 
jurisdiction  upon  the  governor. 

It  was  not  necessary  that  the  order  of  removal  should  specify 
the  particular  acts  for  which  the  removal  was  made.  The  order 
necessarily  includes  all  acts  embraced  in  the  charges  and  covered 
by  the  proofs  just  as  the  general  verdict  of  a  jury  includes  all 
the  facts  comprehended  in  the  issue  submitted,  and  the  validity  of 
the  judgment  indicated  by  the  order  of  removal  is  not  affected 
by  the  circumstances  that  the  executive  instead  of  specifying  the 
particular  acts  of  misconduct  of  which  the  sheriff  was  charged 
and  found  guilty,  expressed  his  reasons  in  a  milder  form,  namely, 
that  it  appeared  to  his  satisfaction  that  the  usefulness  of  Guden 
in  the  office  of  sheriff  of  the  county  is  at  an  end  and  that  he  be 
removed  from  the  office. 

Gaby,  Haight,  Vann,  Cullen,  and  Werner,  JJ.  (O'Brien,  J., 
in  result  in  memorandum),  concur  with  Parker.  Ch.  J. 

Order  affirmed. 

Some  cases,  however,  hold  that  misconduct  prior  to  the  beginning  of 
the  existing  term  of  office  is  not  a  ground  for  removal  under  a  power  to 
remove  for  cause.    See  e,  g.  Thruston  v.  Clark.  107  Cal.  285. 

See  also  Dullam  v.  Wilson,  53  Mich.  392,  which  holds  that  a  bearing 
must  be  given  where  the  power  to  remove  may  be  exercised  only  for  cause. 


STATE  EX  REL.  WILLIAMS  V,  KENNELLY.  277 

THE  STATE  EX  REL.  WILLIAMS  V.  KENNELLY. 

Supreme  Court  of  Errors  of  Connecticut.    July,  1903. 
75  Connecticut  704. 

Hamersley,  J.  This  is  an  information  in  the  nature  of  a  quo 
warranto,  filed  by  the  State's  attorney  at  the  relation  of  Charles 
E.  Williams,  charging  the  respondent,  Patrick  Kennelly,  with 
usurping  the  office  of  director  of  public  works  of  the  city  of 
Bridgeport.  The  information  alleges  that  the  mayor  of  Bridgeport, 
under  and  in  pursuance  of  the  charter  of  that  city,  on  May  26th, 
1900,  appointed  the  relator  director  of  public  works  for  the  term 
of  four  years  from  June  1st,  1900,  that  the  relator  duly  qualified 
and  entered  upon  the  duties  of  the  office,  and  that  the  respondent 
has  since  May  19th,  1902,  illegally  usurped  and  still  continues 
to  usurp  said  office. 

The  answer  admits  the  appointment  of  the  relator  on  May 
26th,  1900,  and  that  the  respondent  now  occupies  and  exercises 
said  office,  and  alleges  that  he  exercises  said  office  by  virtue  of 
an  appointment  thereto  by  the  mayor  of  Bridgeport,  and  further 
alleges  the  following  facts,  namely:  The  said  mayor  summoned 
the  relator  to  appear  before  him  on  April  30th,  1902,.  to  answer  to 
charges  of  incompetency  and  negligence  in  performing  the  duties  of 
his  office,  and  particularly,  to  the  following  charges,  to  wit:  that 
he  had  been  and  still  was  interested  in  the  compensation  paid  for 
stone  furnished  the  city  during  his  term  of  office  by  the  Williams 
&  Dewhirst  Company;  that  he  employed  one  Dewhirst  as  assist- 
ant and  subordinate,  who  was  interested  in  the  compensation  so 
paid  for  stone  furnished  by  said  Williams  &  Dewhirst  Company, 
knowing  that  he  was  so  interested;  that  he  negligently  permitted 
the  stone  so  purchased  of  the  Williams  &  Dewhirst  Company  to  be 
furnished  the  city  without  having  any  representative  of  the  city, 
other  than  an  officer  of  said  company,  to  supervise  the  measure- 
ment of  the  stone,  and  without  any  method  or  system  by  which 
the  quality  of  stone  so  furnished  could  be  accurately  determined, 
and  had  thereby  caused  the  city  to  be  defrauded  and  damaged; 
that  in  answer  to  said  summons  the  relator  appeared  before  the 
mayor,  with  counsel,  and  heard  and  examined  the  witnesses  who 
testified  in  support  of  the  charges,  and  offered  such  evidence  and 
arguments  as  he  desired;  that  on  May  19th,  1902,  and  after 
said  hearing,  the  mayor  found  that  said  charges  were  true,  and 


278  TERMINATION  OF  THE  OFFICIAL  RELATION. 

that  sufficient  cause  existed  for  the  removal  of  the  relator  from 
office,  and  did  therefore  remove  the  relator  from  his  said  office; 
and  that  afterwards,  and  on  May  19th,  1902,  the  mayor  appointed 
the  respondent  to  fill  the  vacancy  created  in  the  office  of  director 
of  public  works  by  said  removal  of  the  relator. 

The  replication  admits  the  summons  and  hearing  as  alleged  in 
the  answer,  and  also  that  after  said  hearing  the  mayor  did  assume 
to  remove  the  relator  from  office,  setting  forth  his  reasons  therefor 
as  alleged  in  the  answer,  and  did  assume  to  appoint  the  respondent 
to  said  office  as  alleged;  and  alleges  that  the  removal  the  mayor 
thus  assumed  to  make  is  illegal  and  void,  because,  first,  no  evi- 
dence was  produced  on  said  hearing  to  legally  substantiate  the 
charges,  and  no  legal  cause  for  the  relator's  removal  was  in  fact 
shown  on  said  hearing;  second,  the  mayor  did  not  remove  the 
relator  for  any  legal  cause  whatever,  but  removed  him  solely  for 
political  reasons;  third,  said  hearing  was  not  a  fair  and  lawful 
one  because  the  mayor,  before  and  after  the  hearing,  in  the  ab- 
sence of  the  relator  consulted  with  and  was  advised  and  influenced 
by  the  attorneys  who  represented  the  prosecution  of  said  charges 
and  the  persons  interested  in  having  the  relator  removed  for  politi- 
cal reasons  only. 

The  respondent  demurred  to  this  replication  and  the  trial  court 
sustained  the  demurrer.  The  relator  claims  that  the  court  erred 
in  sustaining  the  demurrer,  and  this  is  the  only  question  raised  by 
the  appeal. 

The  charter  of  the  city  of  Bridgeport  as  revised  in  1895  (12 
Special  Laws,  p.  515)  provides,  among  other  things,  (section  32) 
that  "the  mayor  of  the  city  shall  be  the  chief  executive  officer 
thereof,  and  it  shall  be  his  duty  to  be  vigilant  and  active  in 
causing  the  laws  to  be  executed  and  enforced  within  the  city;" 
and  that  (section  11)  the  common  council  shall  consist  of  the 
mayor  and  twenty  aldermen.  Various  powers  and  duties  are  as- 
signed to  subordinate  executive  boards,  including  the  board  of 
public  works,  of  which  boards  the  mayor  is  a  member  and  chair- 
man, but  without  the  power  of  voting  unless  in  case  of  tie.  The 
members  of  each  of  these  boards  are  appointed  by  the  mayor 
(sections  17,  19)  to  hold  office  for  a  definite  term,  unless  sooner 
removed  for  cause.  Any  member  of  these  boards  may  be  removed 
by  the  common  council  by  a  two-thirds  vote,  for  cause  (sections 
17,  19).  It  is  the  duty  of  the  mayor  to  fill  by  appointment  any 
vacancies  in  offices  in  all  cases  in  which  he  is  given  the  power 


STATE  EX  EEL.  WILLIAMS  V,  KENNELLY.  279 

to  appoint  (section  32),  and  to  perform  all  duties  imposed  upon 
him  by  the  charter  and  ordinances  of  the  city,  the  laws  of  the 
State,  and  of  the  United  States.  The  general  clause  applicable 
to  all  officers  appointed  under  the  charter,  limits  their  respective 
terms  to  their  removal  from  office. 

It  seems  evident  from  the  language  used,  in  connection  with 
other  provisions  of  the  charter,  that  this  mode  of  removal  does 
not  depend  on  an  exercise  of  that  quasi-judicial  power  to  hear 
and  determine  official  offenses  punishable  by  a  forfeiture  of  office, 
as  in  the  case  of  the  amotion  of  a  corporate  officer  by  a  municipal 
corporation  for  some  offense  which  forfeits  his  right  to  the  office, 
or  the  deprivation  of  an  ecclesiastical  corporation  for  a  similar 
offense,  or  where  an  administrative  board  is  authorized  to  punish 
in  this  way  some  misfeasance  in  office.  Removals  dependent  on  the 
conviction  or  quasi-eonyietion  of  some  offense  are  otherwise  pro- 
vided for.  Section  41  of  the  charter  authorizes  the  common  council 
to  enact  ordinances  relative  to  the  removal  or  expulsion  from  office 
of  any  officer  on  account  of  corruption  or  misfeasance  therein. 
Section  80,  in  authorizing  the  boards  of  fire  and  police  commis- 
sioners to  remove  a  fireman  or  policeman,  specially  provides  for 
a  hearing  had  in  open  session.  Section  85,  in  authorizing  the 
mayor  to  remove  a  member  of  the  board  of  apportionment  and 
taxation,  requires  a  conviction  of  some  corrupt  practice. 

Although  the  power  of  removal  may  be  limited  by  the  necessity 
of  assigning  some  cause,  or  of  informing  the  officer  removed 
of  the  cause  of  his  removal  and  giving  him  an  opportunity  for 
explanation,  and  stating  the  ground  for  removal,  the  act  belongs 
rather  to  the  field  of  executive  discretion  than  to  that  of  quasi- 
judicial  finding;  and  the  action  of  the  removing  officer  comply- 
ing with  the  limitation  is  final.  People  ex  rel.  Keech  v.  Thompson, 
94  N.  Y.  451;  People  ex  rel.  Gere  v.  Whitlock,  92  Id.  191,  197; 
State  ex  rel.  Kennedy  v.  McOarry,  21  Wis.  502,  503;  People  v. 
Martin,  19  Colo.  565;  State  ex  rel.  Attorney-General  v.  Hawkins, 
44  Ohio  St.  98,  115. 

In  1899  (13  Special  Laws,  p.  376)  the  city  charter  was  amended 
by  abolishing  the  board  of  public  works  and  giving  the  powers 
and  duties  assigned  to  that  board  to  the  "director  of  public 
works,  and  the  amendment  provided  that  this  officer  should  be  ap- 
pointed by  the  mayor  for  a  term  of  four  years,  unless  sooner 
removed  by  the  mayor  for  cause. 

Considering  all  the  provisions  of  the  charter  as  thus  amended, 


280  TERMINATION  OP  THE  OFFICIAL  RELATION. 

we  think  the  removal  of  this  officer  is  a  mode  of  exercising  this 
power  of  removal  incident  to  executive  appointment,  and  that 
the  limitation  placed  on  its  exercise  is  satisfied,  possibly  more 
than  satisfied,  when  the  mayor  has  stated  to  the  officer  the  cause 
which  induces  him  to  contemplate  his  removal,  being  a  proper 
and  sufficient  cause,  has  given  him  an  opportunity  to  be  heard 
in  relation  thereto,  and  assigns  this  cause  in  making  the  re-^' 
moval. 

It  follows  that  the  facts  alleged  in  the  answer  and  admitted 
by  the  replication  establish  a  valid  removal  of  the  relator,  and  a 
valid  appointment  of  the  respondent.  The  afiirmative  allegations 
of  the  relator's  replication  are  immaterial  and  irrevelant,  be- 
cause, if  true,  they  do  not  alter  the  fact  of  the  relator's  removal 
from  office.  Avery  v.  Studley,  74  Conn.  272;  Hoboken  v.  Gear, 
27  N.  J.  L.  265,  286-288.  An  executive  removal  may  be  unjust 
and  induced  by  reprehensible  motives,  but  it  is  not  therefore 
invalid.  The  executive  discretion,  whether  in  appointment  or  re- 
moval, is  absolute.  The  person  abusing  that  discretion  may  be 
punished,  but  not  by  judicial  reversion  of  his  official  action.  When 
the  absolute  discretion,  whether  in  appointment  or  removal,  is  lim- 
ited by  law,  while  the  due  observance  of  those  limits  may  be  en- 
forced, yet  the  action  of  the  executive  within  the  limits  prescribed 
cannot  be  controlled  by  the  court. 

Whether  the  validity  of  executive  appointment  or  removal 
should  or  could  be  made  to  depend  on  prior  judicial  trial  and 
finding  under  the  rules  governing  judicial  trials,  and  subject  to 
be  reviewed  and  set  aside  by  the  court  for  errors  in  the  conduct  of 
the  trial  and  upon  the  absence  of  any  controlling  improper  motive 
inducing  the  executive  action — absence  of  such  motive  to  be  de- 
termined by  the  court — are  questions  not  before  us.  Such  judicial 
control  or  executive  action  has  heretofore  been  deemed  inconsistent 
with  the  efficient  performance  of  executive  duties.  The  relator's 
claim  seems  to  assume  that  the  city  charter,  in  authorizing  the 
mayor  to  appoint  a  director  of  public  works  for  a  term  of  four  ^ 
years,  or  until  sooner  removed  by  him  for  cause,  and  upon  his  re- 
moval to  appoint  another  to  fill  the  vacancy,  requires,  as  an  essential 
condition  precedent  to  any  removal,  the  existence  of  a  sufficient 
cause 'to  be  judicially  found  as  a  fact,  and  declares  a  removal  follow- 
ing such  cause  and  assigning  the  same  as  its  reason,  to  be  void, 
if  in  fact  the  inducing  motive  is  not  the  existing  cause  assigned, 
but  a  desire  to  have  the  office  filled  by  a  member  of  the  mayor '8 


GREGORY  V.  MAYOR.  281 

own  political  party;  and  that  the  Superior  Court,  upon  pro- 
ceedings in  the  nature  of  quo  warranto,  is  made  the  final  judge 
of  the  sufficiency  of  the  cause  and  its  existence  as  a  fact,  and  of 
the  operating  motive  of  the  mayor  in  making  the  removal. 

This  assumption  is  plainly  unfounded.  The  demurrer  was 
properly  sustained. 

There  is  no  error  in  the  judgment  of  the  Superior  Court. 

In  this  opinion  the  other  judges  concurred. 

Under  §  2140,  New  York  Code  of  Civil  Procedure,  as  interpreted  by  the 
courts.  People  ex  rel.  Masterson  v.  PYench,  110  N.  Y.  494,  infra,  the  courts 
are  empowered  to  reverse  on  certiorari  proceedings,  a  determination  to 
remove  an  oflScer,  removable  only  for  cause  and  after  a  hearing,  on  the 
ground  that  such  a  determination  is  opposed  to  the  preponderance  of  proof. 


5.     Power  of  Suspension. 

GREGORY  V.  MAYOR,  ETC. 

Court  of  Appeals  of  New  York.    April  16,  1889. 
113  N.  Y.  416. 

Peckham,  J. 

The  trial  judge  was  amply  justified  by  the  evidence  in  hold- 
ing, as  a  fact,  that  the  plaintiff  never  received  any  notice  of  dis- 
missal, and  we  are  concluded  by  such  finding.  The  only  question 
that  is  left  for  discussion  is,  whether  the  resolution  of  the  com- 
missioners of  excise,  which  assumed  to  suspend  the  plaintiff  in- 
definitely, and  without  pay,  from  the  performance  of  his  duties 
was  authorized.  It  is  claimed  that  the  power  of  the  commissioners 
to  suspend  their  employes  was  included  in  the  conceded  power 
to  remove  them. 

"Whether  the  power  to  remove  includes  the  power 

to  suspend,  must,  as  it  seems  to  us,  depend,  among  other  things, 
upon  the  question  whether  the  suspension  in  the  particular  case 
would  be  an  exercise  of  a  power  of  the  same  inherent  nature  as 
that  of  removal,  and  only  a  minor  exercise  of  such  power,  or 
whether  it  would  work  such  different  results  that  no  inference  of 
its  existence  should  be  indulged  in,  based  only  on  the  grant  of 


282  TBEMINATION   OP  THE  OFFICIAL   RELATION. 

the  Specific  power  to  remove.  We  think  it  is  apparent  that  the 
two  powers  cannot  always  be  properly  respectively  described  as 
the  greater  and  less,  and,  consequently,  it  cannot  always  be  de- 
termined, simply  upon  that  ground,  that  the  suspension  is  valid 
because  there  was  a  power  to  remove.  The  power  to  remove  is  the 
power  to  cause  a  vacancy  in  the  position  held  by  the  person  re- 
moved, which  may  be  filled  at  once,  and  if  the  duties  are  such 
as  demand  it,  it  should  be  thus  filled.  The  power  to  suspend 
causes  no  vacancy  and  gives  no  occasion  for  the  exercise  of  the 
power  to  fill  one.  The  result  is  that  there  may  be  an  office,  an  officer 
and  no  vacancy,  and  yet  none  to  discharge  the  duties  of  the  office. 
By  suspension  the  officer  is  prevented  from  discharging  any  du- 
ties, and  yet  there  is  no  power  to  appoint  anyone  else  to  the 
office  because  there  is  no  vacancy.  If  it  be  claimed  that  the 
power  to  suspend  includes  also  the  power  to  fill  the  place  of  the 
officer  suspended  during  such  suspension,  then  there  is  a  second 
presumed  power  which  flows  from  the  simple  power  to  remove. 
There  is  the  power  to  suspend  and  there  is  the  further  power  to  be 
implied  from  it,  viz.,  the  power  to  fill  the  office  with  another 
during  such  suspension,  although  there  is  no  vacancy  in  the  office. 

We  do  not  think  either  of  these  last-named  powers  should  be 
implied  in  the  mere  grant  of  the  power  to  remove.  We  are  not  in- 
clined to  go  so  far  with  the  doctrine  of  implied  grants  of  power, 
because  we  think  the  implication  is  not  one  which  naturally  or 
necessarily  arises  out  of  the  nature  of  the  main  power  granted, 
and  its  denial  in  such  cases  as  this  can,  as  we  think,  work  no  pos- 
sible mischief.  We  do  not  go  to  the  extent  of  saying  that  in  no 
conceivable  case  can  the  power  to  suspend  be  inferred  from 
a  grant  of  the  power  to  remove.  There  may  be  cases  where  such 
an  interference,  arising  from  the  general  scope  and  nature  of  the 
act  granting  the  power,  would  be  so  strong  as  to  compel  recogni- 
tion. We  think  there  is  no  such  inference  to  be  drawn  in  the 
case  before  us. 

The  plaintiff  held  the  position  of  excise  inspector  and*  it  was 
his  business,  as  he  described  it,  "to  go  'round  to  different  places 
where  liquor  was  sold  and  see  if  the  sellers  were  licensed  and 
if  they  were  not,  that  they  should  get  one;  also  to  see  that  the 
sale  of  intoxicating  liquors  in  the  city  of  New  York  was  carried 
on  properly.'*  These  duties  were,  necessarily,  to  be  discharged  out 
of  the  sight  of  the  commissioners.  Upon  the  fidelity  and  prudence 
with  which  such  duties  were  discharged  depended,  in  great  part. 


GREGORY  V.  MAYOR.  283 

the  proper  enforcement  of  the  law.  The  commissioners  might  be- 
lieve that  the  inspector  was  not  doing  his  duty,  and  yet  be  unable 
to  show  exactly  wherein  he  failed.  Proof  thereof  on  charges,  to  be 
regularly  preferred,  would  amount  almost  to  a  denial  of  the 
power  to  remove,  because,  the  duties  being  of  such  a  nature  as 
above  described  and  to  be  performed  beyond  the  view  of  the  com- 
missioners, the  inference  of  a  failure  to  perform  them  might  be 
based  upon  such  a  number  of  disconnected  facts  that  it  would  not 
be  regarded  as  justified  upon  a  regular  trial.  Hence  the  necessity 
of  a  power  to  remove  when  the  commissioners  might  feel  that  there 
had  been  a  dereliction  of  duty  without  being  able  to  point  out  any 
specific  fact  as  evidence  thereof,  while  the  power  of  indefinite 
suspension,  without  pay,  would  not  add  anything  to  the  security 
of  'the  city  or  the  power  of  the  commissioners  to  obtain  honest  serv- 
ice. If  the  employe  were  unfit,  it  would  be  the  duty  of  the  com- 
missioners to  remove  him  at  once.  If  not  unfit,  he  should  not  be 
suspended  indefinitely,  without  pay. 

It  seems  to  us  that  the  power  of  removal  in  such  a  case  as 
this  was  entrusted  to  the  commissioners  to  be  exercised,  if  at  all, 
at  once  and  finally.  It  was  not  meant  that  they  should  have 
power  to  arbitrarily  suspend  without  pay,  and  then  appoint  some 
other  in  the  place  of  the  suspended  man,  and  perhaps  suspend  or 
remove  the  alternate  and  again  appoint  some  other.  The  tendency 
would  be  to  confuse  instead  of  perfecting  the  service.  The  effect 
upon  the  suspended  man  would  also  be  demoralizing,  causing 
him  to  expend  his  time  in  efforts  to  get  reinstated  rather  than  in 
endeavors  to  procure  a  livelihood  in  other  ways,  which  would  be 
the  result  of  a  removal.  As  the  existence  of  the  power  to  suspend 
depends  upon  our  inferring  it  from  the  grant  of  the  power  to 
remove,  all  of  the  views  above  suggested  may  properly  be  regarded 
as  bearing  upon  the  question  whether  there  is  any  inherent  neces- 
sity for  an  inference  of  such  a  nature.  The  constitution  of  our 
state,  in  section  3  of  article  5,  in  providing  for  the  appointment 
of  a  superintendent  of  public  works,  says  that,  '*he  may  be  sus- 
pended or  removed  from  office  by  the  governor,  whenever,"  etc. 
In  section  4  of  the  same  article  provision  is  made  for  the  ap- 
pointment of  a  superintendent  of  state  prisons,  and  it  is  stated 
that  "the  governor  may  remove  the  superintendent  for  cause  at 
any  time,"  etc.  Has  the  governor  power  to  suspend  in  both  cases? 
This  difference  of  language  in  the  organic  law  rather  tends  to  the 
idea  that  the  framers  of  these  two  provisions  were  not  entirely 


284  TERMINATION   OF   THE   OFFICIAL  RELATION. 

sure  that  the  power  to  remove  included  the  power  to  suspend,  or 
that  the  latter  power  was  always  of  the  same  nature  and  only- 
less  in  extent  than  the  former. 

We  think  the  commissioners  had  no  power  to  suspend  the  plain- 
tiff, and  that  the  frequent  attendance  of  the  plaintiff  at  the  office 
of  the  board,  and  his  continuous  offers  to  discharge  the  duties 
of  the  position  to  which  he  had  been  appointed,  were  suflScient 
tenders  of  performance  on  his  part  to  warrant  the  conclusion  of 
the  learned  trial  judge  in  directing  the  verdict. 

We  see  no  errors  in  the  record  and  the  judgment  should  be 
aflSrmed,  with  costs. 

All  concur,  except  Ruger,  Ch.  J.,  not  voting. 

Judgment  affirmed. 

Cf.  Wardlaw  v.  Mayor,  137  N.  Y.  194,  supra. 


STATE  EX  REL.  DOUGLAS  V.  MEGAARDEN. 

Supreme  Court  of  Minnesota.    December,  1901. 
85  Minnesota  41. 

Lovely,  J. 

Quo  warranto  upon  the  information  of  the  attorney  general  in 
behalf  of  the  state  against  Philip  T.  Megaarden,  sheriff  of  Henne- 
pin county,  to  oust  him  from  the  possession  of  that  office  during 
the  proceedings  before  the  governor  for  his  removal. 

Respondent  demurred  to  the  information,  which  issue  presents 
two  questions:  (1)  Are  the  allegations  of  the  information  suffi- 
cient to  show  that  the  executive  was  authorized  to  order  an  investi- 
gation for  the  removal  of  the  sheriff?  (2)  Did  the  order  for  such 
investigation  authorize  the  governor  to  suspend  the  sheriff  during 
the  course  of  the  procedure  for  his  removal? 

1.  The  information  alleges  that  respondent  was  elected  sheriff 
of  Hennepin  county  at  the  general  election  of  1900 ;  that  he  quali- 
fied and  entered  upon  the  office  in  January,  1901;  that  the  public 
examiner  subsequently  made  an  examination  into  his  official 
affairs  for  the  years  1899,  1900  and  1901 ;  that  on  November  25, 
1901,  the  examiner  reported  to  the  governor  that  the  sheriff  had 
made  improper  charges  against  the  county  in  excess  of  legal  right, 
and  had  collected  the  same  on  verified  claims  presented  to  the 
board  of  county  commissioners. 


STATE  EX  REL.  DOUGLAS  V.  MEGAARDEN.  285 

2.  The  governor  acted  upon  the  complaint  of  the  examiner, 
appointed  a  commission  as  provided  in  G.  S.  1894,  §  894,  and  fixed 
a  time  for  the  return  of  their  report.  He  also  made  an  order  sus- 
taining the  sheriff  during  the  proceedings  for  removal,  of  which 
due  notice  was  given,  but  respondent  has  ever  since  continued  in 
possession  of  the  office  in  defiance  of  the  order  of  suspension. 
"Whether  he  was  right  or  wrong  in  this  respect  is  the  important 
question  before  us,  involving  the  power  of  the  governor  to  make 
the  order  of  suspension. 

No  right  to  suspend  is  given  in  express  terms.  If  such  power 
exists,  it  must  be  implied ;  hence  the  question  still  remains,  can  the 
governor,  upon  the  ordering  of  the  commission,  suspend  the  officer 
during  the  investigation? 

"While  the  right  to  remove  under  the  law  of  sister  states  is  in 
many  instances  conferred  by  statutes  quite  similar  to  ours,  yet  the 
authorities  in  respect  to  the  incidental  right  to  suspend  pending 
the  hearing  are  meager  and  unsatisfactory.  "We  have  been  referred 
to  several  cases  by  counsel  for  respondent,  but  found  them  of 
little  assistance. 

The  best  considered  case  relied  upon  by  counsel,  in  which  it 
has  been  held  that  the  power  of  suspension  was  not  an  incident  to 
the  power  of  removal  is  Gregory  v.  Mayor,  113  N.  Y.  416,  21  N.  E. 
119.  .  .  .  This  case  is  not  in  point  here,  where  the  temporary 
vacancy  created  by  the  suspension  of  a  county  officer  is  made, 
pending  a  hearing,  which  may  terminate  in  his  favor,  with  rein- 
statement to  the  duties  and  emoluments  of  the  office.  The  only 
value  of  this  opinion  is  derived  from  the  fact  that  it  was  written 
by  a  very  able  jurist,  who  reviews  the  authorities,  but  distinguishes 
them  from  the  question  now  presented  to  this  court. 

Most  of  the  authorities  cited  for  the  state  are  either  distinguish- 
able from  the  case  before  us,  or  go  upon  an  assumption  of  the 
incidental  right  to  suspend  without  furnishing  such  reasons  for 
its  existence  as  would  render  them  of  paramount  weight  on  this 
review.  The  case  of  State  v.  Peterson,  50  Minn.  239,  52  N.  "W. 
655,  was  on  quo  warranto  to  remove  a  county  treasurer,  conducted 
under  laws  1881,  c.  108  (G.  S.  1894,  §§  909-913),  which  in  express 
terms  provides  for  the  suspension  of  that  officer  pending  his  re- 
moval. 

In  the  Peterson  case  the  court  referred  to  the  only  precedent  we 


286  TERMINATION  OP  THE  OPPICTAL  RELATION. 

have  found  directly  in  point  on  this  question,  viz.  State  v.  Police, 
16  Mo.  App.  48,  50.  This  court  in  the  Peterson  case  quoted  there- 
from with  respect  language  of  such  importance  to  the  questions 
here  involved  that  we  take  the  liberty  of  reproducing  it  on  account 
of  its  practical  suggestive  force.  Premising  that  in  the  Missouri 
case  the  right  to  suspend  the  official  depended  upon  a  power  con- 
ferred solely  by  statute,  the  court  said:  "The  suspension  of  an 
officer,  pending  his  trial,  for  misconduct,  so  as  to  tie  his  hands 
for  the  time  being,  seems  to  be  universally  accepted  as  a  fair, 
salutary,  and  often  necessary  incident  of  the  situation.  His  re- 
tention, at  such  time,  of  all  the  advantages  and  opportunities 
afforded  by  official  position  may  enable  and  encourage  him  not 
only  to  persist  in  the  rebellious  practice  complained  of,  but  also 
to  seriously  embarrass  his  triors  in  their  approaches  to  the  ends 
of  justice.  In  the  absence  of  any  express  limitation  to  the  con- 
trary— and  none  has  been  shown — ^we  are  of  opinion  that  in  cases 
where  guiltiness  of  the  offense  charged  will  involve  a  dismissal 
from  office  there  is,  on  general  principles,  no  arbitrary  or  improper 
exercise  of  a  supervisory  authority  in  a  suspension  of  the  accused 
pending  his  trial  in  due  and  proper  form." 

The  reasons  stated  in  the  above  case  for  holding  that  the  right 
of  suspension  during  proceedings  for  removal  seem  to  be  so  essen- 
tial to  a  complete  and  thorough  investigation  of  an  official  charged 
with  misconduct  as  to  furnish  an  unanswerable  argument  to  the 
claim  of  respondent  that  the  minor  right  to  suspend  is  not  in- 
cluded in  the  major  authority  to  remove. 

It  ought  not,  therefore,  to  be  held  that  the  unquestionable  power 
to  remove  should  be  so  handicapped  by  an  iBterpretation  of  the 
statute  as  to  defeat  the  very  object  it  seeks  to  attain.  Presum- 
ably the  chief  executive  of  the  state  will  act  upon  an  exalted  sense 
of  justice  and  high  considerations  of  duty,  and  only  in  cases  where 
strong  reasons  exist  for  exercising  the  power  of  suspension  will 
impose  unnecessary  burdens  upon  the  accused  official  after  a 
sufficient  review  of  the  reasons  upon  which  that  power  is  to  be 
exercised. 

The  order  to  suspend  should  not  prejudice  the  respondent  in 
any  way.  He  is  entitled  to  a  fair  hearing,  with  all  the  presump- 
tions of  innocence  and  good  intentions  in  his  favor.  These  ought 
to  continue  until  the  termination  of  the  investigation  and  the  final 
action  of  the  governor,  but  we  are  compelled  to  adopt  the  view 


TRIAL  OF  ANDREW  JOHNSON.  287 

that,  to  give  the  power  of  removal  practical  effect,  it  must  be  left 
to  executive  discretion  and  judgment  to  direct  a  temporary  sus- 
pension of  the  official,  as  so  ordered  in  this  case. 
Let  the  writ  of  ouster  issue  as  prayed  for. 


IV.    Impeachment. 

TRIAL  OF  ANDREW  JOHNSON. 

In  the  Senate  of  the  United  States.    1868. 

Opinion  of  Mr.  Senator  Davis. 

Our  system  of  impeachment  has  not  been  transferred  from  any 
other  government,  nor  was  its  organization  conMed  to  Congress; 
but  the  cautious  statesmen  who  founded  our  government  incor- 
porated it  in  and  built  it  up  as  part  of  the  Constitution  itself. 
They  enumerated  its  essential  features  and  made  it  sui  generis. 
1.  No  person  but  civil  officers  of  the  United  States  are  subject 
to  impeachment.  2.  The  Senate  is  constituted  the  court  of 
impeachment.  3.  The  Chief  Justice  of  the  United  States  is  to 
preside  over  the  court  when  the  President  is  upon  trial,  and  the 
Vice-President  or  the  President  pro  tempore  of  the  Senate  in  all 
other  cases.  4.  No  conviction  can  take  place  unless  two-thirds  of 
the  senators  present  concur.  5.  No  impeachment  can  be  made 
but  for  treason,  bribery  or  other  high  crimes  and  misdemeanors 
against  the  United  States.  6.  Judgment  of  impeachment  cannot 
extend  to  death  or  other  corporal  punishment,  or  fine  or  impris- 
onment; but  is  restricted  to  removal  from  and  disqualification  to 
hold  office;  but  the  party  convicted  nevertheless  to  be  liable  and 
subject  to  indictment,  trial,  judgment,  and  punishment  according 
to  law.  The  offenders,  offences,  court  and  punishment  are  all 
distinctly  impressed  with  political  features. 

The  Senate  now  and  for  this  occasion  is  a  court  of  impeachment 
for  the  trial  of  the  President  of  the  United  States,  and,  like  all 
other  courts,  is  bound  by  the  law  and  the  evidence  properly 
applicable  to  the  case. 


288  TERMINATION  OP  THE  OFFICIAL  RELATION. 

One  of  the  leading  and  inflexible  laws  which  bind  this  court  is 
embodied  in  the  Constitution  in  these  words; 

*'No  person  shall  be  removed  from  office  but  on  impeachment 
for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. ' ' 

That  is  the  category  of  all  impeachable  offences,  and  they  must 
be  acts  declared  by  the  law  of  the  United  States  to  be  treason  or 
bribery,  or  some  other  offence  which  it  denominates  a  "high  crime 
or  misdemeanor."  The  laws  which  define  impeachable  offences 
may  be  the  Constitution,  or  acts  of  Congress,  or  the  common  law, 
or  some  other  code,  if  adopted  either  by  the  Constitution  or  act  of 
Congress.  No  common-law  offence,  as  such  merely,  can  sustain 
the  impeachment  of  any  officer ;  but  to  have  that  authority  it  must 
have  become  a  part  of  the  law  of  the  United  States  by  being 
adopted  by  the  Constitution  or  some  act  of  Congress,  and  would 
have  operation  and  effect  only  to  the  extent  that  it  was  consistent 
with  the  provisions,  principles  and  general  spirit  of  the  Constitu- 
tion. 

It  results  from  this  view  of  the  law  of  impeachment,  that  as 
none  of  the  articles  against  the  President  charge  him  with  treason 
or  bribery,  which  are  made  impeachable  offences  by  the  Constitu- 
tion, they,  or  some  of  them,  must  allege  against  him  the  doing  of 
an  act  or  acts  which  a  law  of  Congress  has  declared  to  be  an 
offence  against  the  United  States,  and  denominated  it  to  be,  and 
in  its  vicious  nature  it  must  be  a  high  crime  or  misdemeanor,  and 
that  the  President  did  that  act  with  a  criminal  intent  to  violate  the 
law,  to  authorize  this  court  to  convict  him  and  to  pronounce  judg- 
ment that  he  be  removed  from  office. 

The  impeachment  of  the  President  of  the  United  States  is  the 
arraignment  of  the  executive  department  of  the  government  by  one 
branch  of  the  legislative  department  and  its  trial  by  the  other.  The 
Incongruity  of  such  a  responsibility  and  consequent  danger  of  the 
ultimate  subordination  of  the  executive  to  the  legislative  depart- 
ment excited  the  gravest  apprehensions  of  that  wisest  political 
sage,  Mr.  Madison,  when  the  Constitution  was  being  framed.  Short 
of  the  sword,  it  is  the  extreme  remedy,  and  was  intended  for  the 
worst  political  disorders  of  the  executive  department.  Nothing 
but  treason,  official  bribery,  or  other  high  crimes  or  misdemeanors, 
made  so  by  law,  and  also  in  their  nature  of  deep  moral  turpitude, 


TEIAL  OP  ANDREW  JOHNSON.  289 

which  are  dangerous  to  the  safety  of  the  State  and  which  palpably 
disqualify  and  make  unfit  an  incumbent  to  remain  in  the  office 
of  President,  can  justify  its  application  to  him.  Cases  that  do  not 
come  up  to  this  measure  of  delinquency,  those  who  made  the  Con- 
stitution intended  should  be  remedied  in  the  frequency  of  our 
elections  by  the  people  at  the  ballot-box;  and  the  public  repose 
and  welfare  require  that  they  should  be  referred  to  that  most  ap- 
propriate tribunal. 

Impeachment  was  not  intended  to  be  used  as  an  engine  to  gratify 
private  malice,  to  avenge  disappointed  expectations,  to  forward 
schemes  of  personal  ambition,  to  strengthen  the  measures  or  con- 
tinue the  power  of  a  party,  to  punish  partisan  infidelity,  to  re- 
press and  crush  its  dissensions,  to  build  up  or  put  down  opposing 
factions.  By  our  system  all  that  sort  of  work  is  to  be  done  in 
popular  canvasses;  and  to  bring  the  great  and  extraordinary  rem- 
edy of  impeachment  to  do  any  of  it,  is  the  vile  prostitution  of 
what  was  intended  to  be  a  rare  and  august  remedy  for  great  evils 
of  state. 

Opinion  of  Mr.  Senator  Trumbull. 

To  do  impartial  justice  to  all  things  appertaining  to  the  present 
trial,  according  to  the  constitution  and  laws,  is  the  duty  imposed 
on  each  senator  by  the  position  he  holds  and  the  oath  he  has  taken, 
and  he  who  falters  in  the  discharge  of  that  duty,  either  from  per- 
sonal or  party  considerations,  is  unworthy  his  position  and  merits 
the  scorn  and  contempt  of  all  just  men. 

The  question  to  be  decided  is  not  whether  Andrew  Johnson  is 
a  proper  person  to  fill  the  presidential  office,  nor  whether  it  is  fit 
that  he  should  remain  in  it,  nor,  indeed,  whether  he  has  violated 
the  Constitution  and  laws  in  other  respects  than  those  alleged 
against  him.  As  well  might  any  other  54  persons  take  upon  them- 
selves by  violence  to  rid  the  country  of  Andrew  Johnson,  because 
they  believe  him  a  bad  man,  as  to  call  upon  54  senators,  in  viola- 
tion of  their  sworn  duty,  to  convict  and  depose  him  for  any  other 
causes  than  those  alleged  in  the  articles  of  impeachment.  As  well 
might  any  citizen  take  the  law  into  his  own  hands,  and  become 
its  executioner,  as  to.- ask  the  senators  to  convict  outside  of  the 
case  made.  To  sanction  such  a  principle  would  be  destructive  of 
all  law  and  all  liberty  worth  the  name,  since  liberty  unregulated 
by  law  is  but  another  name  for  anarchy. 

Unfit  for  President  as  the  people  may  regard  Andrew  Johnson, 
19 


290  TERMINATION   OF  THE  OFFICIAL   RELATION. 

and  much  as  they  may  desire  his  removal,  in  a  legal  and  constitu- 
tional way,  all  save  the  unprincipled  and  depraved  would  brand 
with  infamy  and  contempt  the  name  of  any  senator  who  should 
violate  his  sworn  convictions  of  duty  to  accomplish  such  a  result. 

Keeping  in  view  the  principles  by  which,  as  honest  men,  we^ 
are  to  be  guided,  let  us  inquire  what  the  case  is. 

The  first  article  charges  Andrew  Johnson,  President  of  the 
United  States,  with  unlawfully  issuing  an  order,  while  the  Senate 
was  in  session,  and  without  its  advice  and  consent,  with  the  intent 
to  remove  Edwin  M.  Stanton  from  the  office  of  Secretary  for  the 
Department  of  War,  contrary  to  the  constitution  and  the  "act 
regulating  the  tenure  of  certain  civil  offices, ' '  passed  March  2,  1867. 
It  will  be  observed  that  this  article  does  not  charge  a  removal  of 
the  Secretary,  but  only  an  intent  to  remove,  which  is  not  made 
an  offence  by  the  tenure-of-office  act  or  any  other  statute,    .    .    . 

The  second  article  charges  that  the  President,  in  violation  of 
the  Constitution,  and  contrary  to  the  tenure-of-office  act,  and 
with  intent  to  violate  the  same,  issued  to  Lorenzo  Thomas  a  letter 
of  authority  empowering  him  to  act  as  Secretary  of  War  ad  in- 
terim, there  being  no  vacancy  in  the  office  of  Secretary  of  War. 
There  is  nothing  in  the  tenure-of-office  act,  or  in  any  other  statute, 
prohibiting  the  issuing  of  such  a  letter,  much  less  making  it  a 
crime  or  misdemeanor.  The  most  that  can  be  said  is  that  it  was 
issued  without  authority  of  law. 

What  has  been  said  in  regard  to  the  second  article  applies  with 
equal  force  to  the  third  and  eighth  articles:  there  being  no  proof 
of  any  unlawful  intent  to  control  the  disbursements  of  the  moneys 
appropriated  for  the  military  service,  as  charged  in  the  eighth 
article. 

Articles  four,  five,  six  and  seven  taken  together,  charge  in  sub- 
stance that  the  President  conspired  with  Lorenzo  Thomas  and 
other  persons  with  intent,  by  intimidation  and  threats,  to  prevent 
Edwin  M.  Stanton  from  holding  the  office  of  Secretary  of  War,  and 
by  force  to  seize  the  property  of  the  United  States  in  the  Depart- 
ment of  War ;  also  that  he  conspired  to  do  the  same  thing  contrary 
to  the  tenure-of-office  act,  without  any  allegation  of  force  or  threats. 

The  record  contains  no  sufficient  proof  of  the  intimidation, 
threats,  or  force  charged ;  and  as  the  President  had.  in  my  opinion, 
the  right  to  remove  Mr.  Stanton,  his  order  for  that  purpose,  as  also 


TRIAL  OF  ANDREW  JOHNSON.  291 

that  to  General  Thomas  to  take  possession  both  peacefully  issued, 
have,  in  my  judgment,  none  of  the  elements  of  a  conspiracy  about 
them. 

The  ninth  article,  known  as  the  Emory  article,  is  wholly  un- 
supported by  evidence. 

The  tenth  article,  relating  to  the  speeches  of  the  President  is 
substantially  proven,  but  the  speeches,  although  discreditable  to 
the  high  office  he  holds,  do  not,  in  my  opinion,  afford  just  ground 
for  impeachment. 

So  much  of  the  eleventh  article  as  relates  to  the  speech  of  the 
President  made  August  18,  1866,  is  disposed  of  by  what  has  been 
said  on  the  tenth  article. 

The  only  proof  to  sustain  the  allegation  of  unlawfully  attempt- 
ing to  devise  means  to  prevent  Edwin  M.  Stanton  from  resuming 
the  office  of  Secretary  of  War  is  to  be  found  in  a  letter  from  the 
President  to  General  Grant,  dated  February  10,  1868,  written  long 
after  Mr.  Stanton  had  been  restored.  This  letter,  referring  to  a 
controversy  between  the  President  and  General  Grant  in  regard 
to  certain  communications,  oral  and  written,  which  had  passed 
between  them,  shows  that  it  was  the  President's  intent  in  case  the 
Senate  did  not  concur  in  Stanton's  suspension,  to  compel  him  to 
resort  to  the  courts  to  regain  possession  of  the  War  Department, 
with  a  view  of  obtaining  a  judicial  decision  on  the  validity  of 
the  tenure-of -office  act;  but  the  intention  was  never  carried  out, 
and  Stanton  took  possession  by  the  voluntary  surrender  of  the 
office  by  General  Grant.  Was  this  intent  or  purpose  of  the  Presi- 
dent to  obtain  a  judicial  decision  in  the  only  way  then  practicable 
a  high  misdemeanor? 

There  is  no  proof  to  sustain  the  other  charges  of  this  article.  In 
coming  to  the  conclusion  that  the  President  is  not  guilty  of  any  of 
the  high  crimes  and  misdemeanors  with  which  he  stands  charged, 
I  have  endeavored  to  be  governed  by  the  case  made  without  refer- 
ence to  other  acts  of  his  not  contained  in  the  record,  and  without 
giving  the  least  heed  to  the  clamor  of  intemperate  zealots  who 
demand  the  conviction  of  Andrew  Johnson  as  a  test  of  party  faith, 
and  seek  to  identify  with  and  make  responsible  for  his  acts  those 
who  from  convictions  of  duty  feel  compelled  on  the  case  made 
to  vote  for  his  acquittal.  His  speeches  and  the  general  course  of 
his  administration  have  been  as  distasteful  to  me  as  to  any  one, 
and  I  should  consider  it  the  great  calamity  of  the  age  if  the  dis- 


292  TERMINATION   OP  THE  OFFICIAL   RELATION. 

loyal  element,  so  often  encouraged  by  his  measures,  should  gain 
political  ascendency.  If  the  question  was.  Is  Andrew  Johnsoji  a 
fit  person  for  President?  I  should  answer,  no;  but  it  is  not  a  party 
question,  nor  upon  Andrew  Johnson's  deeds  and  acts,  except  so 
far  as  they  are  made  to  appear  in  the  record,  that  I  am  to  decide. 

Painful  as  it  is  to  disagree  with  so  many  political  associates 
and  friends  whose  conscientious  convictions  have  led  them  to  a 
different  result,  I  must,  nevertheless,  in  the  discharge  of  the  high 
responsibility  under  which  I  act,  be  governed  by  what  my  reason 
and  judgment  tell  me  is  the  truth  and  the  justice  and  the  law  of 
this  case.  What  law  does  the  record  show  the  President  to  have 
violated?  Is  it  the  tenure-of-office  act?  I  believe  in  the  consti- 
tutionality of  that  act,  and  stand  ready  to  punish  its  violators; 
but  neither  the  removal  of  that  faithful  and  efficient  officer,  Ed- 
win M.  Stanton,  which  I  deeply  regret,  nor  the  ad  interim  desig- 
nation of  Lorenzo  Thomas,  were,  as  has  been  shown,  forbidden  by 
it.  Is  it  the  reconstruction  acts  ?  Whatever  the  facts  may  be,  this 
record  does  not  contain  a  particle  of  evidence  of  their  violation. 
Is  it  the  conspiracy  act?  No  facts  are  shown  to  sustain  such  a 
charge,  and  the  same  may  be  said  of  the  charge  of  a  violation  of 
the  appropriation  act  of  March  2,  1867 ;  and  these  are  all  the  laws 
alleged  to  have  been  violated.  It  is,  however,  charged  that  An- 
drew Johnson  has  violated  the  Constitution.  The  fact  may  be  so, 
but  where  is  the  evidence  of  it  to  be  found  in  this  record  ?  Others 
may,  but  I  cannot  find  it.  To  convict  and  depose  the  Chief  Magis- 
trate of  a  great  nation,  when  his  guilt  was  not  made  palpable  hy 
the  record,  and  for  insufficient  cause,  would  be  fraught  with  far 
greater  danger  to  the  future  of  the  nation  than  can  arise  from 
leaving  Mr.  Johnson  in  office  for  the  remaining  months  of  his  term, 
with  powers  curtailed  and  limited  as  they  have  been  by  recent 
legislation. 

Once  set  the  example  of  impeaching  a  President  for  what,  when 
the  excitement  of  the  hour  shall  have  subsided,  will  be  regarded  as 
insufficient  causes,  as  several  of  those  now  alleged  against  the 
President  were  decided  to  be  by  the  House  of  Representatives  only 
a  few  monthes  since,  and  no  future  President  will  be  safe  who 
happens  to  differ  with  a  majority  of  the  House  and  two-thirds 
of  the  Senate  on  any  measure  deemed  by  them  important,  par- 
ticularly if  of  a  political  character.  Blinded  by  partisan  zeal, 
with  such  an  example  before  them,  they  will  not  scruple  to  remove 
out  of  the  way  any  obstacle  to  the  accomplishment  of  their  pur- 


OPINION  OF  THE  JUSTICES.  2&3 

poses,  and  what  then  becomes  of  the  checks  and  balances  of  the 
Constitution,  so  carefully  devised  and  so  vital  to  its  perpetuity? 
They  are  all  gone.  In  view  of  the  consequences  likely  to  flow  from 
this  day's  proceedings,  should  they  result  in  conviction  on  what 
my  judgment  tells  me  are  insufficient  charges  and  proofs,  I  tremble 
for  the  future  of  my  country.  I  cannot  be  an  instrument  to  pro- 
duce such  a  result !  and  at  the  hazard  of  the  ties  even  of  friendship 
and  affection,  till  calmer  times  shall  do  justice  to  my  motives,  no 
alternative  is  left  me  but  the  inflexible  discharge  of  duty. 


OPINION  OF  THE  JUSTICES. 

Supreme  Judicial  Court  of  Massachusetts.    February,  189V, 
167  Massachusetts  599. 

The  following  order  was  adopted  by  the  House  of  Representa- 
tives on  January  27,  1897,  and  thereupon  transmitted  to  the  Jus- 
tices of  the  Supreme  Judicial  Court,  who  on  February  25,  1897, 
returned  the  opinion  which  is  subjoined. 

Ordered,  That  the  opinion  of  the  Justices  of  the  Supreme  Judi- 
cial Court  be  required  upon  the  following  important  question  of 
law,  namely: 

"Is  the  county  commissioner  an  officer  of  the  Conunonwealth 
within  the  meaning  of  Article  VIII  of  Section  2  of  Chapter  1  of 
the  Constitution,  and  is  a  county  commissioner  subject  to  the 
impeachment  process  provided  by  the  Constitution?" 

To  the  Honorable  the  House  of  Representatives  of  the  Common- 
wealth of  Massachusetts: 

The  undersigned,  Justices  of  the  Supreme  Judicial  Court,  re- 
spectfully submit  the  following  answer  to  the  question  proposed 
by  the  Honorable  House,  by  its  order  of  January  27,  1897,  a  copy 
of  which  is  annexed. 

In  the  Constitution,  c.  1,  section  2,  art.  8,  it  is  provided  as  fol- 
lows: ''The  Senate  shall  be  a  court  with  full  authority  to  hear 
and  determine  all  impeachments  made  by  the  House  of  Repre- 
sentatives, against  any  officer  or  officers  of  the  Commonwealth, 
for  misconduct  and  maladministration  in  their  offices."  By  virtue 
of  this  provision,  no  one  can  be  impeached  except  officers  of  the 


294  TERMINATION  OP  THE  OFFICIAL  RELATION. 

Commonwealth;  and  it  is  necessary  to  determine  whether  county 
commissioners  fall  within  this  description. 

There  are  several  classes  of  civil  officers  within  the  Common- 
wealth ;  for  example,  town  or  city  officers,  county  officers,  officers  of 
districts,  and  State  officers.  In  a  certain  sense,  all  of  these  officers 
may  be  deemed  to  be  officers  of  the  Commonwealth,  and  it  is  pos- 
sible accordingly  to  take  the  view  that  all  are  subject  to  impeach- 
ment. But  in  our  opinion  this  provision  of  the  Constitution  was 
not  intended  to  include  all  civil  officers  of  every  grade  within  the 
commonwealth. 

On  the  one  hand,  it  seems  to  us  that  the  various  officers  of 
cities  or  towns  do  not  fall  within  the  class  of  officers  of  the  Com- 
monwealth in  the  sense  in  which  these  words  are  used  in  this  pro- 
provision  of  the  Constitution. 

On  the  other  hand,  officers  elected  by  the  people  at  large,  or 
provided  for  in  the  Constitution  for  the  administration  of  matters 
of  general  of  State  concern,  are  subject  to  impeachment. 

The  intention  of  the  framers  of  the  Constitution  in  respect  to 
such  officers  as  county  commissioners  is  not  free  from  doubt.  The 
office  of  county  commissioner  is  created  by  statute,  and  the  Legis- 
lature can  by  statute  determine  in  what  manner  an  incumbent 
may  be  removed  from  office.  They  have  some  duties  or  functions 
which  concern  the  people  of  the  State  at  large.  But  it  seems  to 
us  that  they  are  essentially  a  local  body.  They  are  elected  by  the 
people  of  a  county,  and  their  duties  relate  chiefly  to  the  affairs 
and  interests  of  the  county.  Some  of  their  duties  are  much  like 
duties  performed  by  selectmen,  or  by  a  mayor  and  alderman,  ex- 
cept that  their  jurisdiction  extends  over  the  whole  county.  In 
Nantucket,  selectmen  by  law  perform  the  duties  of  county  com- 
missioners. In  Suffolk  County,  these  duties  are  performed  in 
part  by  municipal  officers. 

It  seems  to  us  that  the  better  construction  of  the  constitutional 
provision  is  that  county  commissioners  are  not  subject  to  impeach- 
ment as  officers  of  the  Commonwealth.  Considering  the  nature 
and  character  of  the  proceedings  by  impeachment,  it  does  not  seem 
wise  to  extend  their  scope  by  a  doubtful  construction.  If  mayors 
and  aldermen  of  cities  and  selectmen  of  towns  are  not  impeach- 
able, we  can  see  no  clear  line  of  distinction  which  would  make 
county  commissioners  impeachable. 

We  have  been  unable  to  find  any  plain  intimation  by  legislatures, 
courts,  or  writers  of  authority,  that  county  commissioners  have 
ever  been  thought  to  be  impeachable  under  provisions  like  those 


STATE  EX  KEL.  ADAMS  V.   HILLYER.  295 

of  our  constitution.    The  fact  that  no  precedent  is  known,  though 
not  decisive  of  itself,  is  entitled  to  some  weight. 

For  these  reasons,  thus  briefly  expressed,  although  some  of  us, 
while  yielding  to  the  conviction  of  our  associates,  have  not  been 
able  to  free  our  minds  from  doubt,  our  answer  to  the  question  of 
the  Honorable  House  of  Representatives  is  in  the  negative. 

Walbridge  a.  Field. 

Charles  Allen. 

Oliver  WENDEiiL  Holmes. 

Marcus  P.  Knowlton. 

■James  M.  Morton. 

John  Lathrop, 

James  M.  Barker. 
February  25,  1897. 


STATE  EX  REL.  ADAMS  V.  HILLYER. 

Supreme  Court  of  Kansas.    July,  1863. 
2  Kansas  17. 

Information  in  Supreme  Court  in  the  nature  of  a  quo  warranto 
exhibited  upon  the  relation  of  Daniel  M.  Adams  by  the  Attorney 
General  of  the  State,  for  the  purpose  of  removing  Hillyer,  re- 
spondent, from  the  office  of  auditor  of  the  State.  The  information 
states  that  Hillyer  since  the  16th  day  of  June,  A.  D.  1862,  hath 
used,  exercised  and  held,  and  still  doth  use  and  exercise  the  office 
of  Auditor  of  State  of  Kansas  without  lawful  warrant  or  author- 
ity therefor:  That  the  said  Hillyer  was  impeached  by  the  House 
of  Representatives  on  the  14th  day  of  February,  A.  D.  1862,  by 
articles  duly  presented  to  the  Senate,  and  that  on  the  16th  day  of 
June  thereafter  the  Senate,  sitting  for  the  trial  of  said  accusation, 
pronounced  a  judgment  of  guilty,  and  of  removal  from  the  said 
office  of  Auditor,  of  the  said  Hillyer. 

The  respondent  by  his  plea  did  not  controvert  the  facts  set 
forth  in  the  information,  but  asserts  that  the  body  that  pro- 
nounced the  judgment  had  no  constitutional  existence,  and  there- 
fore the  judgment  was  a  nullity. 

Other  facts  appear  in  the  opinion  of  the  court. 

By  the  Court,  Kingman,  J. 

The  facts  of  the  ease  were  agreed  upon  leaving  for  the  Court 


296  TERMINATION  OF  THE  OFFICIAL  RELATION. 

to  decide  the  single  question,  whether  the  session  held  by  the  Sen- 
ate when  it  tried  and  pronounced  judgment  in  the  case,  was  a  legal 
and  constitutional  one. 

This  is  denied  on  two  grounds. 

1st.  There  is  no  power  in  the  Senate  to  set  for  the  purpose  of 
trying  impeachments  when  the  House  is  not  in  session, 

2d.  If  such  power  exists,  the  adjournment  of  the  Senate  to  the 
1st  Monday  in  June  was  without  consent  of  the  House,  and  void; 
and  if  valid,  was  annulled  by  the  subsequent  concurrent  resolution 
adjourning  the  Legislature,  sine  die. 

By  constitutional  provision  all  impeachment  cases  are  to  be 
tried  by  the  Senate;  but  as  to  when  the  Senate  shall  set  for  that 
purpose  or  how  the  trial  shall  be  conducted  the  constitution  is 
silent  except  in  declaring  that  the  senators  when  sitting  for  that 
purpose  shall  be  sworn;  that  the  concurrence  of  two-thirds  of  the 
Senators  elected  is  necessary  to  a  conviction,  and  a  limitation  as 
to  the  extent  of  punishment. 

In  the  absence  of  express  provisions  it  is  presumed  that  the  com- 
mon law  *'will  regulate,  interpret,  and  control  the  powers  and 
duties  of  the  Court  of  Impeachment,"  but  this  rule,  applicable 
only  to  the  trial  and  proceedings,  affords  no  guide  in  determining 
the  question  as  to  the  organization  of  the  Court,  for  in  this  state 
the  tribunal  that  tries,  as  well  as  the  body  that  prefers  the  accu- 
sation, are  entirely  unknown  to  the  common  law,  and  if  there  is 
such  a  general  resemblance  of  our  legislative  assembly  to  the  Par- 
liament of  Great  Britain,  as  to  be  easily  noticed,  the  points  of  dis- 
similarity are  still  more  apparent  and  striking.  And  this,  not 
only  in  the  organization  and  general  powers  of  the  two  bodies, 
but  even  in  this  matter  of  impeachment. 

By  our  law  the  House  of  Representatives  alone  can  prefer 
charges  of  impeachment,  by  the  common  law  of  Parliament,  not 
only  the  Commons,  but  a  Peer  or  the  Attorney  General  at  the  suit 
of  the  King  may  prefer  articles  of  impeachment  (Com.  Dig.  V. 
238.) 

In  prosecutions  by  the  Commons  upon  an  impeachment,  it  be- 
longs to  the  Commons  to  demand  judgment  (Com.  Dig.  V.  244), 
and  the  House  of  Commons  have  a  right  to  be  present  whether 
they  appoint  managers  or  not,  that  every  member  may  satisfy  his 
conscience  whether  he  will  give  his  vote  to  demand  judgment. 
(Strafford's  Case,  2  Commons  Journal,  105-108.) 

This  right  of  the  Commons  to  be  present  in  cases  where  the 
impeachment  was  presented  by  them  grows  out  of  the  assumed  right 


STATE  EX  REL.  ADAMS  V.  HILLYER.  297 

of  the  Commons  to  arrest  the  prosecution  by  refusing  to  demand 
judgment,  even  after  the  person  impeached  has  been  found  guilty. 
Such  power  has  never  been  exercised  or  claimed  in  this  country  by 
the  House  exhibiting  the  accusation,  and  would  be  utterly  sub- 
versive of  the  independent  jurisdiction  of  the  Senate  as  a  Court 
of  Impeachment,  by  subjecting  the  judgments  of  the  senate  to  the 
review  of  the  House  before  they  would  be  of  any  force  or  effect. 

The  reason  of  the  usage  or  right  of  attendance  upon  the  trial  by 
the  Commons  having  failed,  the  rule  itself  ceases,  as  we  have 
adopted  no  more  of  the  common  law  in  this  state  than  is  adapted 
to  our  situation  and  applicable  to  our  institutions.  The  laws  of 
this  State,  however,  by  express  provision,  have  empowered  the 
Senate,  when  sitting  as  a  Court  for  the  trial  of  impeachments,  to 
hold  sessions  after  the  adjournment  of  the  Legislature,  and  what- 
ever may  have  been  the  rule  of  the  common  law  it  was  prefectly 
competent  for  this  legislature  to  prescribe  a  different  rule  unless 
prohibited  by  the  Constitution,  and  we  look  in  vain  for  any  such 
provision,  either  express  or  implied.  Nor  is  there  in  that  instru- 
ment any  inhibition  of  the  session  of  one  branch  of  the  Legislature 
when  the  other  is  not  in  session.  There  is  a  fixed  time  when  both 
houses  shall  meet,  a  limitation  of  the  power  of  one  house  to  ad- 
journ for  a  longer  period  than  two  days  without  the  consent  of 
the  other,  and  in  case  of  disagreement,  the  Governor  may  adjourn 
them. 

If  it  be  admitted,  as  claimed,  that  when  acting  in  their  legis- 
lative capacity,  the  proceedings  of  one  house,  when  the  other  is 
not  in  session,  have  no  validity,  it  can  only  be  upon  the  ground 
that  their  legislative  power  is  a  unit,  though  distributed,  and  the 
parts  can  only  act  in  unison,  and  neither  the  reason  nor  principle 
would  apply  to  this  case.  .  .  .  The  case  before  the  court  pre- 
sents much  stronger  reasons  why  the  separate  action  of  one  body 
may  be  valid  in  the  absence  or  non-organization  of  the  other,  for 
the  Senate  acts  entirely  in  a  judicial  capacity.  Its  action  is  in- 
dependent of  the  House;  and  as  we  have  seen,  there  is  no  reason 
why  the  House  should  be  present  or  in  session,  and  in  the  absence 
of  constitutional  inhibition  we  can  perceive  no  reason  why  the 
Senate,  with  the  consent  of  the  House,  may  not  adjourn  to  any 
period  during  their  term  of  office,  and  not  beyond  the  regular 
meeting  of  the  Legislature,  whether  the  House  be  in  session  or  not. 
If  at  such  adjourned  session  its  acts  were  confined,  as  in  this  case, 
to  duties  in  which  they  were  entirely  independent  of  the  House 


298  TERMINATION   OF  THE  OFFICIAL  EELATION. 

or  any  action  it  might  take,  those  acts  would  be  valid  and  conclu- 
sive. 

Another  view  of  this  point  in  the  case  will  illustrate  and  strength- 
en the  conclusion.  Had  the  Constitution  conferred  the  power  of 
trying  impeachments  upon  any  other  tribunal  than  the  Senate,  and 
named  no  time  for  the  trial,  and  fixed  no  limits  for  adjournment, 
no  one  would  have  the  hardihood  to  deny  that  both  these  mattei-s 
might  be  regulated  by  law. 

In  this  State  the  Legislature  has  given  express  power  to  the 
Senate  when  organized  and  sitting  as  a  court  for  the  trial  of  any 
impeachment,  to  adjourn  from  time  to  time  and  hold  a  session 
after  the  adjournment  of  the  Legislature. 

Such  a  law  is  clearly  within  the  province  of  the  Legislature  to 
enact,  but  would,  of  course,  be  limited  by  the  last  clause  of  Sec. 
10,  Art.  2,  of  the  Constitution,  so  that  such  adjournments  can  only 
be  made  by  consent  of  the  House.  The  law  may  well  be  taken< 
as  the  clearly  manifested  consent  of  the  House  that  passed  it,  that 
the  then  Senate  might  adjourn  and  hold  sessions  after  the  Legis- 
lature, but  not  as  to  the  consent  of  any  subsequent  House  that  such 
session  may  be  held. 

But  it  is  denied  that  the  House  ever  gave  its  consent  to  the  ad- 
journment of  the  Senate  until  June. 


The  constitution  prohibits  the  adjournment  of  one  House  for 
more  than  two  days  without  the  consent  of  the  other,  but  does  no 
point  out  how  or  when  that  consent  shall  be  given.  It  would  be 
difficult  to  conceive  of  a  stronger  manner  of  giving  that  consent 
than  by  previous  request,  reiterated,  as  in  this  case,  that  it  be  done. 
But  to  avoid  all  cavil  the  law  above  quoted  was  passed  the  next 
day,  and  was  in  the  most  solemn  manner  and  with  all  the  forms 
of  legislation,  a  declaration  of  the  consent  of  that  House,  that  the 
then  Senate  might  adjourn  at  its  pleasure  and  hold  sessions  after 
the  adjournment  of  the  Legislature.  It  is  essential  to  the  validity 
of  a  contract  that  each  of  all  the  parties  to  it  should  give  his  assent 
to  its  terms.  Yet  few  contracts  upheld  and  enforced  by  the  Courts 
present  so  strong  and  varied  evidence  of  the  assent  of  the  parties  as 
this  case  does  of  the  consent  of  the  House  to  the  adjournment  of 
the  Senate  till  the  first  Monday  in  June. 

But  it  is  insisted  that  the  concurrent  resolution  adjourning  the 
Legislature  sine  die  on  the  6th  of  March,  1862,  dissolved  both 
branches  of  the  Legislature  finally,  and  they  could  not  be  con- 
vened again  save  by  the  exercise  of  executive  power.    It  is  evident 


'/ 


IN  RE  EXECUTIVE  COMMUNICATION.  299 

that  each  branch  of  the  Legislature  considered  this  resolution  with 
reference  to  the  previous  adjournment  of  the  Senate  sitting  a&, 
a  court  of  impeachment,  and  the  law  which  had  just  been  enacted/ 
and  this  is  the  plain  sense  and  clear  legal  import  of  the  several 
acts.  The  Senate,  sitting  as  a  court,  having  adjourned  its  sessions/ 
as  such,  to  the  1st  Monday  in  June,  united  with  the  House  in 
concurrent  resolution  to  terminate  their  Legislative  sittings  by  ai 
adjournment  sine  die  on  the  6th  of  March.  This  is  all  that  the  lan- 
guage of  the  resolution  would  indicate  and  all  that  was  intended ; 
and  the  meeting  of  the  Senate  as  a  court  in  June  was  not  in  con- 
flict with  it,  and  it  must  be  so  held. 

All  the  justices  concurring;  Ewing,  C.  J.,  Baily  and  Kingman 
on  the  bench. 


IN  EE  EXECUTIVE  COMMUNICATION. 

Supreme  Court  of  Florida.    April,  1872. 
14  Florida  289. 

Westcott,  J.,  delivered  the  opinion  of  the  court. 

Sec.  16,  Art.  V,  of  the  Constitution  of  this  State  provides  that 
the  ' '  Governor  may  at  any  time  require  the  opinion  of  the  Justices 
of  the  Supreme  Court  as  to  the  interpretation  of  any  portion  of 
this  constitution  or  upon  any  point  of  law  and  the  Supreme  Court 
shall  render  such  opinion  in  writing." 

The  question  presented  for  our  consideration  is  whether  his  Ex- 
cellency Harrison  Reed,  Governor  of  Florida,  is  at  this  time  in 
contemplation  of  law  ''deemed  under  arrest"  and  "disqualified 
from  performing  any  of  the  duties  of  his  office."  We  are  obliged 
to  determine  this  question  in  order  to  ascertain  whether  he  has  a 
right  to  demand  our  opinion  as  well  as  whether  it  is  our  duty  to 
give  it. 

The  Constitution  (Art.  LX,  Sec.  16)  declares  that  any  officer 
when  impeached  by  the  Assembly  shall  be  in  that  condition,  but 
any  officer  so  impeached  may  demand  his  trial  by  the  Senate  within 
one  year  from  the  date  of  his  impeachment.  His  Excellency  Har- 
rison Reed,  Governor  of  Florida,  was  impeached  at  the  late  session 
of  the  Legislature  (January,  1872).  This  is  admitted  by  the 
communication  now  before  us,  and  it  is  shown  by  the  journals  of 


300  TERMINATION   OP   THE  OFFICIAL   RELATION. 

the  House  of  Assembly  and  the  Senate  for  that  session.  The  con- 
sequence of  that  impeachment  was  to  disqualify  him  from  perform- 
ing the  duties  of  his  office.  The  suspension  consequent  upon  the 
impeachment  can  cease  to  exist  under  the  Constitution,  if  it  ceases 
at  all,  but  in  one  way — which  is  acquittal  by  the  Senate — for  what- 
ever may  be  the  effect  of  the  expiration  of  one  year  from  the  im- 
peachment and  demand  for  trial,  that  time  has  not  elapsed,  and 
for  that  reason  the  construction  of  that  clause  of  the  constitution 
is  not  here  involved.  In  the  language  of  the  constitution  the  officer 
"shall  be  disqualified  from  performing  any  of  the  duties  of  his 
office  until  acquitted  by  the  Seriate.'*  The  only  event  then  which 
could  have  operated  in  this  case  to  restore  this  officer  to  his  powers, 
must  have  been  an  acquittal  by  the  Senate.  The  simple  question, 
then  presented  for  our  consideration  is,  has  there  been  an  ac- 
quittal by  the  Senate? 

The  only  question,  therefore,  which  remains  to  be  considered  to 
dispose  of  this  very  elaborately  argued  subject  is,  has  the  Senate 
made  any  such  final  disposition  of  this  impeachment?  This  is  a 
very  plain,  simple  question,  to  be  determined  by  an  examination  of 
the  journal  of  the  proceedings  of  the  court  and  the  Senate  on  the 
last  day  of  the  session  of  the  Court  of  Impeachment. 

It  appears,  therefore,  that  the  court  after  failing  to  act  upon 
a  motion  to  acquit  and  discharge  the  prisoner,  simply  adjourned, 
and  that  the  Senate  at  12  M.  on  the  same  day  adjourned  for  the 
session.  In  view  of  this  record,  it  is  plain,  therefore,  that  the 
court  made  no  final  disposition  of  the  case,  but  simply  adjourned. 
The  case  is,  therefore,  still  pending  in  that  court.  A  case  is  pend- 
ing il  it  is  not  finally  disposed  of,  and  clearly  here  is  no  final 
disposition  of  it  by  any  order  of  the  Senate  so  doing.  On  the 
contrary,  the  record  shows  that  a  motion  to  discharge  was  pending 
at  the  time  of  adjournment. 

But  it  is  insisted  that  this  action  by  the  Senate  entitled  the  re- 
spondent to  his  discharge,  and  that  in  contemplation  of  law  it  was 
equivalent  to  his  discharge.  Now,  if  the  Senate  is  the  sole  au- 
thority to  discharge — if  it  is  the  only  tribunal  that  can  discharge — 
then  it  is  plain  that  it  is  the  only  authority  that  can  act  in  the 
matter?  Whether  a  prisoner  is  discharged  from  the  custody  of  a 
court  or  from  an  indictment,  is  a  fact  to  be  determined  by  a  simple 
inspection  of  the  record.  If  there  is  no  order  to  that  effect,  then 
there  is  no  discharge,  and  if,  as  in  this  case,  there  is  nothing  in  the 


IN  RE  EXECUTIVE  COMMUNICATION.  301 

record  discharging  the  respondent,  the  simple  result  is  that  the 
Senate  has  not  discharged  him. 

It  is  proper  to  inquire  here  .whether  we  have  any  legal  right  or 
power  to  determine  what  the  effect  of  this  action  is  under  the 
circumstances.  If  we  have  not;  if  it  shall  be,  as  we  conceive  it 
is,  the  exclusive  and  sole  province  of  the  Senate  to  determine  that 
question ;  if  by  so  doing  we  usurp  a  jurisdiction  not  vested  in 
this  court  by  the  State  Constitution  and  wrest  a  case  now  pending 
from  a  court  of  exclusive  jurisdiction  over  the  trial  of  the  sub- 
ject, and  presume  to  review  its  action  and  discharge  what  we 
may  conceive  to  be  its  duty,  it  is  plain  that  such  action  is  im- 
proper. 

Let  us  compare  the  powers  and  functions  of  the  Senate  in  this 
matter  with  the  power  of  this  court.  What  is  the  Senate  when 
organized  for  the  purpose  of  trying  impeachments?  What  is  the 
extent  of  its  jurisdiction,  and  what  relation  exists  between  this 
tribunal  and  that?  The  Senate,  when  thus  organized,  is  unques- 
tionably a  court — ^because  it  is  a  body  invested  with  judicial 
functions ;  because  it  determines  issues  both  of  law  and  fact ;  because 
it  announces  the  law  in  form  of  judgment,  and  through  that  instru- 
mentality adjudges  the  penalties  named  by  the  Constitution.  Not 
only  is  it  a  court,  but  it  is  a  court  of  exclusive  original  and  final 
jurisdiction.  Its  judgments  can  become  the  subject  of  reversal  or 
review  in  no  other  court  known  to  the  Constitution  and  the  laws. 
This  simple  exercise  of  judicial  functions,  the  application  of  law 
to  facts  and  announcing  its  conclusions,  are  not  extraordinary  or 
transcendent  powers.  Nor  is  the  simple  fact  that  its  jurisdiction 
is  both  original  and  final  a  circumstance  which  alone  would  justify 
us  in  ascribing  to  it  any  extraordinary  degree  of  importance,  be- 
cause the  general  reason  why  a  court  has  both  original  and  final 
jurisdiction  is  the  small  degree  of  importance  of  the  matter  in- 
volved. Not  only  is  this  tribunal  a  court,  but  it  is  a  court  of  great 
importance.  Its  jurisdiction  is  not  indeed  very  extensive  as  to  the 
number  of  the  subjects-matter  which  may  come  under  its  con- 
trol, but  the  sphere  in  which  it  acts,  while  limited  to  but  one  class 
of  cases,  is  most  high  and  transcendant.  This  is  so  because  of 
the  subject-matter  of  its  jurisdiction,  the  degree  and  extent  of  the 
punishment  it  imposes,  and  the  exclusive  power  which  it  has  of  regu- 
lating its  practice  arising  upon  any  matter  pending  before  it.  All 
other  persons  in  whom  judicial  power  is  vested  under  the  Consti- 
tution derive  their  existence  from  a  delegated  power  to  the  Gov- 
ernor and  Governor  and  Senate.    These  persons  represent  the  peo- 


302  TERMINATION  OF  THE  OFFICIAL  RELATION, 

pie  directly  through  the  exercise  of  the  elective  franchise.  .  .  , 
We  may  oust  an  usurper  because  he  was  not  elected  or  eligible, 
and  there  our  power  ends.  This  Court  of  Impeachment  and  the  As- 
sembly go  further.  To  them  the  people  have  confided  the  superin- 
tendence and  control  of  all  persons  who  are  invested  with  distin- 
guished political  franchises  and  offices.  This  court  can  say  to  an  of- 
ficer, you  are  not  elected  or  qualified.  That  court  can  say  to  him,  we 
admit  that  you  are  selected  by  the  people;  that  you  were  in  all 
respects  qualified,  and  notwithstanding  all  this,  you  shall  not  only 
no  longer  discharge  the  functions  and  franchises  of  a  particular 
office,  but  you  shall  not  hold  in  the  future  any  office  of  honor, 
trust  or  profit  under  the  State.  Under  these  circumstances,  we 
submit  that  we  should  and  must  be  very  careful  how  we  act  in  such 
matters.  This  jurisdiction  is  too  high  and  transcendent  to  be  in- 
vaded. 

In  the  argument  of  this  case  allusions  were  made  to  the  rule  that 
the  different  departments  of  the  government  must  keep  within 
their  several  constitutional  spheres  of  action.     The  conflict  here 
threatened  is  not  between  co-ordinate  departments  of  the  govern- 
ment.    It  is  between  two  courts  of  high  and  transcendent  juris- 
diction. We  having  no  jurisdiction  of  the  subject-matter  of  impeach- 
ment, propose  to  discharge  an  impeachment  proceeding  because  we 
conceive  that  the  legal  effect  of  certain  action  taken  in  the  court 
having  exclusive  jurisdiction  of  the  subject  is  to  entitle  the  party 
to  a  discharge.     Suppose  we  test  the  question  of  jurisdiction  by 
bringing  the  matter  to  a  contest.     Suppose  we  say  in  this  in>^ 
stance  to  Governor  Reed  that  the  legal  effect  of  this  action  is  your  I 
discharge  and  you  are  entitled  to  enter  upon  the  duties  of  yourj 
office.    Suppose  the   Senate   meet  to-morrow  and   determine   fo*^ 
themselves  that  they  have  not  in  fact  discharged  the  prosecution! 
and  they  have  done  nothing  which  in  law  entitles  him  to  a  dis-j 
charge ;  that  upon  their  calendar  the  case  is  still  pending  and  they \ 
propose  to  proceed  to  the  trial.    Is  it  not  perfectly  clear  that  if'^^ 
the  Senate  has  the  exclusive  jurisdiction  of  the  case,  its  judgments 
and  not  ours  must  prevail?    We  think  there  can  possibly  be  n(/ 
doubt  here. 

We  cannot  determine  the  effect  of  this  action  of  the  Senate, 
and  all  that  we  have  to  do  with  the  subject  is  to  respect  its  judg- 
ment, whatever  it  may  be,  provided  the  punishment  inflicted  is  not 
in  excess  of  that  named  in  the  Constitution,  and  is  authorized  by 


IN  RE  EXECUTIVE  COMMUNICATION.  303 

it,  and  is  the  judgment  of  a  legal  Senate  vested  with  jurisdiction  of 
the  subject-matter  and  of  the  person. 

Our  power  in  the  matter  of  this  impeachment  is  limited  and  cir^ 
cumscribed  by  the  fact  that  it  is  a  matter  beyond  our  jurisdictiou 
entirely.    After  an  impeachment  perfected  according  to  the  Consti-S 
tution,  the  whole  matter  is  with  the  Senate,  and  it  has  the  exclusive  / 
right  of  determining  all  questions  which  may  arise  in  the  case.   If 
its  action  is  unconstitutional,  we  have  the  right  and  power  to  de-  J 
clare  its  nullity,  and,  in  a  proper  case  before  us,  to  enforce  the/ 
right  of  any  party  of  which  it  proposed  to  deprive  him. 

In  what  we  have  said  we  do  not  affirm  the  entire  want  of  juris- 
diction or  power  in  this  court  in  proper  cases  to  investigate  and  en- 
quire into  any  act  of  the  Senate  affecting  the  rights  of  parties  be- 
fore it  in  a  case  where  what  they  have  done  comes  before  us  col- 
laterally. That  power  cannot  be  thrown  off.  But  when  the  Con^ 
stitution  vests  exclusive  jurisdiction  over  impeachments  in  the 
Senate,  we  are  deprived  of  the  power  of  deciding  questions  aris- 
ing in  the  course  of  the  trial,  or  while  the  impeachment  is  pending, 
for  these  necessarily  must  belong  to  the  court  vested  with  the 
principal  power  or  jurisdiction,  and  there  is  no  appellate  power 
in  this  court  to  reverse  it.  When,  therefore,  in  exercising  the  power 
and  jurisdiction  vested  in  this  court,  we  proceed  to  inquire  into 
matters  brought  properly  to  our  attention,  the  law  does  not  auth- 
orize us  to  substitute  our  judgment  for  that  of  the  Senate  upon 
questions  before  that  tribunal,  and  hence,  if  it  appears  that  no 
order  finally  disposing  of  the  case  has  been  made  by  it,  we  are  at 
once  arrested  by  the  rule  of  constitutional  law  which  affirms  that 
the  Senate  itself  is  the  only  tribunal  to  decide  whether,  from  the 
nature  of  its  own  previous  action,  the  party  is  entitled  to  a  dis- 
charge. 

With  these  views,  we  can  only  say  that  until  Gov.  Reed  is  ac-\ 
quitted  by  the  Senate,  we  cannot  acquit  him,  and  that  during  his   1 
suspension  his  power  as  Governor  to  demand  our  opinion  upon  / 
any  question  of  law  ceases.  We  decline  to  say  whether  the  law 
applicable  to  the  proceedings  of  the  Senate  at  its  last  session  en- 
titled him  to  a  discharge.    It  would  be  improper  in  this  court  to 
go  beyond  saying  that  the  Court  of  Impeachment  is  still  in  exist- 
ence and  must  determine  the  matter.    We  should  not  suggest  to  that 
court  how  it  should  determine  a  question  to  come  before  it  in  a 
case  now  pending.     With  the  circumstances  reversed,  we  should 


804  TERMINATION  OP  THE  OFFICIAL  RELATION. 

not  be  very  much  obliged  to  that  or  any  other  tribunal  should  it 
suggest  to  us  how  we  should  determine  a  case  pending  before 
this  court;  and  should  it,  unasked  by  us,  give  its  views  of  the 
law  of  a  case  pending  before  this  court,  we  should  deem  it  a  grave 
mistake  as  well  as  an  improper  interference.  Being  suspended,^ 
Gov.  Reed's  relation  to  us  in  this  matter  is  no  more  than  that  of  I 
a  citizen,  and  it  would  certainly  be  improper  in  us  to  give  a  voluny 
tary  opinion  to  a  citizen  upon  a  question  of  law,  and  whether 
we  had  jurisdiction  over  the  subject-matter  or  not.  / 


TJIE  STATE  EX  PARTE,  V.  O'DRISCOLL. 

Constitutional  Court  of  South  Carolina.    May,  1815. 
2  Treadway's  South  Carolina  Reports  713. 

Brevard,  J.  The  motion  for  the  reversal  of  the  order  of  the 
district  court  in  this  case  has  been  placed  on  various  grounds. 
I  will  consider  and  dispose  of  the  objections  to  the  order  of  the 
district  court  in  question,  in  the  course  in  which  they  are  exhibited 
in  the  brief.  The  first  is,  that  the  Senate  proceeded  unconstitu- 
tionally against  the  appellant  by  impeachment,  and  that  their 
judgment  of  removal  from  office  is  illegal  and  void.  .  .  .  But 
I  think  it  unnecessary  to  discuss  these  questions,  as  I  am  of  opin- 
ion that  the  part  of  the  act  of  Assembly  of  1789  relied  on,  has 
been  wholly  superseded  and  repealed  by  the  constitution,  which 
declares  "that  all  civil  officers  shall  be  liable  to  impeachment  for 
any  misdemeanor  in  office." 

The  only  answer  which  I  shall  make  to  the  fourth  ground  is, 
that  it  is  not  for  this  court  to  rectify,  or  condemn  the  proceed- 
ings and  judgment  of  the  high  court  of  impeachment;  the  con- 
stitution has  given  no  such  power,  and  moreover  I  think  it  dis- 
respectful to  that  great  and  independent  tribunal,  to  suffer  its 
proceedings  and  judgments  to  be  criticised  and  censured  in  the 
manner  it  was  on  the  argument  in  this  case. 

Justices  COLCOCK,  Smith,  and  Grimke,  concurred. 

The  official  relation  may  be  terminated  also  by  the  abolition  of  the 
office.  Koch  V.  The  Mayor,  152  N.  Y.  72,  supra,  and  the  legislature  may  in 
the  absence  of  a  constitutional  Inhibition  declare  an  office  vacant  by  the 
passage  of  a  law.  See  cases  cited  In  Attorney  General  v.  Jochlm,  99  Mich. 
358,  supra. 


CHAPTER  VI, 

COMPENSATION  OF  OFFICERS. 

I.     Not  Based  on  Contbact.* 

WHITE  V.  INHABITANTS  OF  LEVANT. 

Supreme  Judicial  Court  of  Maine.     January,  1887. 
78  Maine  568. 

Walton,  J.  The  only  question  we  find  it  necessary  to  con- 
sider is  whether  one  who  has  accepted  a  town  office  to  which  neither 
the  legislature  nor  the  town  has  annexed  any  compensation,  can 
maintain  an  action  to  recover  compensation  for  his  official  serv- 
ices. It  is  well  settled  that  he  cannot.  The  compensation  of  some 
town  officers  is  provided  for  by  statute.  The  compensation  of 
assessors,  selectmen,  and  overseers  of  the  poor,  is  thus  provided. 
R.  S.  c.  6,  sec.  102.  Such  compensation  may  of  course  be  recovered, 
whether  the  town  is  willing  to  pay  or  not.  So,  if  the  town  has  ex- 
pressly voted  a  compensation.  But  in  the  absence  of  any  such  stat- 
ute or  vote,  no  compensation  can  be  recovered.  Talbot  v.  East 
Machias,  76  Maine  415 ;  Sikes  v.  Hatfield,  13  Gray  347 ;  Walker  v. 
Cook,  129  Mass.  578;  Dillon's  Mun.  Corp.  (2d  ed.)  Sec.  169. 

The  plaintiff  has  obtained  a  verdict  on  a  claim  made  up  largely 
of  charges  for  his  official  services  as  town  agent.  Unfortunately 
for  him  neither  the  town  nor  the  legislature  has  annexed  any 
compensation  to  his  office.  The  verdict,  therefore,  is  contrary  to 
law,  and  must  be  set  aside. 

The  motion  is  sustained,  the  verdict  set  aside,  and  a  new  trial 
granted. 

Peters,  C.  J.,  Danforth,  Emery,  Foster,  and  Haskell,  JJ., 
concurred. 

♦In  the  absence  of  a  constitutional  inhibition  the  legislature  Is  to  fix  the 
compensation  of  an  officer  which  it  may  change  during  the  term  of  an  in- 
cumbent.  Butler  V,  Pennsylvania,  10  How.  U.  S.  402,  supra. 


20 

305 


306  COMPENSATION  OP  OFPICEES. 

COUNTY  OF  LANCASTER  V.  FULTON. 

Supreme  Court  of  Pennsylvania.     October,  1889. 
128  Pa.  8t.  48. 

Opinion  by  Mr.  Justice  Sterrett: 

In  his  statement  and  affidavit  of  claim,  plaintiff  below  avers  that 
his  demand  is  founded  upon  a  contract  between  himself  and  the 
county  commissioners,  dated  June  28,  1882,  by  which  he  agreed 
to  collect  from  the  Commonwealth  all  overpaid  taxes  on  personal 
property  then  due;  for  which  services  the  county,  by  its  com- 
missioners, agreed  to  pay  him  twenty-five  per  centum  on  the  amount 
or  amounts  which  might  be  credited  to  it  in  its  accounts  with 
the  Commonwealth. 

•  ••••••••  • 

That,  "in  pursuance  of  said  agreement  and  resolution  the  plain- 
tiff, after  five  years  of  work,  labor,  and  great  expense  .... 
procured  a  credit  settlement  in  favor  of  the  county  ...  in 
its  account  with  the  Commonwealth,  of  $20,823.50;  of  overpaid 
taxes  included  in  the  terms  of  said  contract, ' '  etc. ;  and  the  plain- 
tiff's  compensation  for  services,  etc.,  as  specified  in  said  agreement 
and  resolution,  is  $5,205.87,  which  sum  is  now  due  with  interest 
thereon  from  June  20,  1887. 

In  substance,  the  defence  interposed  by  the  county  was,  that 
at  the  time  the  resolution  of  June  28,  1882,  was  adopted,  plaintiff 
below  "was  the  duly  elected  and  qualified  solicitor"  of  the  county, 
serving  under  the  act  of  February  18,  1870,  at  a  salary  of  $500 
fixed  by  that  act;  and,  for  that  reason,  neither  he  nor  the  county 
commissioners  had  any  power  or  authority  to  enter  into  the  con- 
tract, under  which  the  services  were  rendered,  and  on  which 
the  claim  is  founded. 

It  is  conceded  that  when  the  contract  was  made  and  for  a 
considerable  time  thereafter,  plaintiff  below  was  the  duly  elected 
and  qualified  solicitor  of  the  county. 

•  ••••«•••  • 

He  was  undoubtedly  a  public  officer  within  the  meaning  of  the 
constitution,  article  III,  Sec.  13,  and  article  XIV,  Sec.  1  and  5,  the 
first  of  which  declares:  "No  law  shall  extend  the  term  of  any 
public  officer  or  increase  or  diminish  his  salary  or  emoluments, 
after  his  election  or  appointment." 

The  services  for  which  the  contract  in  question  undertakes  to 


COUNTY  OF  LANCASTER  V.  FULTON.  307 

provide,  are  clearly  within  the  sphere  of  the  duties  of  the  "so- 
licitor of  Lancaster  county,"  as  defined  by  the  act  of  February 
18,  1870. 

What  authority,  then,  had  either  the  plaintiff  below,  or  the  county 
commissioners,  to  enter  into  a  contract  to  compensate  the  former 
for  services  within  the  sphere  of  his  duties  as  solicitor  of  the 
county?  We  are  of  opinion  that  they  had  none;  that  the  act  of 
the  commissioners  in  undertaking  to  bind  the  county  to  pay  the 
compensation  provided  for  in  the  contract  was  ultra  vires.  Doubt- 
less the  very  object  of  the  act  in  creating  the  office  of  county  so- 
licitor, provided  for  his  election  and  fixing  his  salary,  etc.,  was 
to  take  the  power  out  of  the  hands  of  the  county  commissioners 
and  place  it  beyond  their  reach.  But  be  that  as  it  may,  we  think 
the  contract  was  ultra  vires  and  void,  and  that  the  first  and  second 
points  for  charge  submitted  by  defendant  below,  should  have  been 
affirmed. 

In  saying,  as  he  correctly  did,  that  if  the  services  of  plaintiff 
below  "had  been  rendered  while  he  was  county  solicitor,  then 
there  could  be  no  recovery,"  the  learned  judge  rightly  assumed 
that  the  contract  in  question  was  unauthorized  and  illegal.  All 
such  contracts,  whether  intended  to  be  so  or  not,  are  in  effect 
evasive  and  subversive  of  law,  contrary  to  public  policy,  and  there- 
fore void. 

Plaintiff's  statement  of  claim  avers,  and  his  own  testimony 
proves  most  conclusively,  that  all  the  services  for  which  he  claims 
to  recover  compensation  were  rendered  under  and  in  pursuance 
of  the  original  contract.  **I  commenced  under  this  contract."  "I 
never  rejected  the  contract,  as  a  matter  of  course. "  "I  continued 
in  this  service,  beginning  on  this  contract."  "I  went  on  under 
this  contract,"  and  many  similar  questions  in  his  answers  to  ques- 
tions put  to  him  on  cross-examination. 

There  is  no  pretence  that  any  new  agreement  was  entered  into, 
or  the  terms  of  the  original  in  any  manner  changed  after  the  ex- 
piration of  his  term  of  office.  Neither  the  subject  of  a  new  contract 
nor  the  modification  of  the  original  ever  appears  to  have  been 
considered  by  the  parties.  The  services  of  plaintiff  below  were 
no  doubt  efficient  and  valuable ;  but,  so  far  as  they  were  rendered 
during  his  term  of  office,  his  salary  is  all  the  compensation  he 
can  claim.    As  to  services  rendered  after  the  expiration  of  his  term 


308  COMPENSATION  OF  OFFICERS. 

of  office,  under  and  in  pursuance  of  the  original  illegal  and  void 
contract,  he  cannot,  under  the  pleadings  and  evidence  in  this 
case  recover. 

Judgment  reversed. 
Mr.  Justice  Mitchell  dissented. 


CONVERSE  V.  THE  UNITED  STATES. 

Supreme  Court  of  the  United  States.    December,  1858. 
21  How.  (V.  S.)  463. 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

It  is  obvious,  therefore,  that  in  order  to  carry  into  execution 
the  intention  of  the  legislative  department  of  the  government, 
these  various  laws  on  the  same  subject-matter  must  be  taken  to- 
gether and  construed  in  connection  with  each  other.  And  we 
should  defeat  instead  of  carrying  into  execution  the  will  of  the 
law-making  power,  if  we  selected  one  or  two  of  these  acts,  and 
founded  our  judgment  on  the  language  they  contained,  without 
comparing  and  considering  them  in  association  with  other  laws 
passed  upon  the  same  subject. 

The  just  and  fair  inference  from  these  acts  of  Congress, 
taken  together,  is,  that  no  discretion  is  left  to  the  head  of  a  depart- 
ment to  allow  an  officer  who  has  a  fixed  compensation  any  credit 
bej'ond  his  salary,  unless  the  service  he  has  performed  is  required 
by  existing  laws,  and  the  remuneration  for  them  fixed  by  law. 
It  was  undoubtedly  within  the  power  of  the  department  to  order 
this  collector,  and  every  other  collector  in  the  Union,  to  purchase 
the  articles  required  for  light-house  purposes  in  their  respective 
districts,  and  to  make  the  necessary  disbursements  therefor.  And 
for  such  services  he  would  be  entitled  to  no  compensation  bej'ond 
his  salary  as  collector,  if  that  salary  exceeded  $2,500. 

But  the  secretary  was  not  bound  to  intrust  this  service  to  the 
several  collectors.  He  had  a  right,  if  he  supposed  the  public 
interest  required  it,  to  have  the  whole  service  performed  by  a 
single  agent;  for  wKTle  the  law  authorizes  him  to  exact  this  serv- 


CONVERSE   V.   UNITED   STATES.  309 

ice  from  the  several  collectors,  it  at  the  same  time  evidently  author- 
izes him  to  commit  the  whole  to  an  agent  or  agents  other  than  the 
collectors,  by  regulating  the  commission  which  an  agent  shall  re- 
ceive, and  appropriating  money  for  payment  of  commissions  of 
two  and  a  half  per  cent  upon  the  whole  amount  authorized  to 
be  expended  in  this  service.  And  as  the  collectors  would  by  law 
be  entitled  in  some  cases  to  nothing,  and  in  others  to  the  small 
sum  above  mentioned,  if  the  service  was  performed  by  them  in 
their  respective  districts,  it  is  very  clear,  from  the  commissions 
allowed,  and  the  appropriation  to  pay  them,  that  he  was  at  liberty 
to  employ  a  different  agency,  and  pay  the  commissions  given 
by  the  law  whenever  he  supposed  the  public  would  be  better  served 
by  this  arrangement. 

And  the  case  as  assumed  in  the  record,  is  precisely  that  case. 
The  Secretary  had  no  right,  under  the  laws  upon  this  subject, 
to  order  this  or  any  other  collector  to  perform  this  duty  for  all 
the  light-house  and  collection  districts.  The  law  has  divided  it 
among  them,  and  the  executive  department  had  no  right  to  im- 
pose it  upon  one.  But  he  had  a  right,  as  we  have  said,  to  employ  an 
agent,  instead  of  the  collector  or  collectors  of  the  several  districts; 
and  if  he  did  employ  one,  the  law  fixed  the  compensation,  and 
appropriated  the  money  to  pay  it.  He  was  not  forbidden  to  employ 
a  revenue  officer  for  this  purpose ;  and,  so  far  as  services  were  per- 
formed for  other  districts,  he  stood  in. the  same  relation  to  the 
government  as  any  other  agent.  The  law  forbidding  compensa- 
tion, or  reducing  it  to  a  small  amount,  did  not  apply  to  this  service. 
The  agency  was  entirely  foreign  to  his  official  duties,  and  far  be- 
yond the  limits  to  which  the  law  confined  his  official  duties  and 
power.  And  as  the  department  appointed  him  to  perform  a  duty 
required  by  law,  for  which  the  compensation  was  fixed  by  law, 
and  the  money  appropriated  to  pay  it,  he  is  entitled  to  the  com- 
pensation given  by  law,  if  he  has  performed  the  duty ;  for  the  Sec- 
retary has  no  more  discretionary  power  to  withhold  what  the 
law  gives,  than  he  has  to  give  what  the  law  does  not  authorize. 
The  agency  and  services  performed  in  this  instance  had  no  more 
connection  with  his  official  duties  and  position  than  the  purchase 
of  a  supply  of  shoes  for  the  troops  in  Mexico,  in  the  late  war, 
would  have  been,  in  the  absence  of  any  other  person  authorized  to 
make  such  a  purchase.  And  if  such  a  duty  was  requested  or  re- 
quired of  him  by  the  head  of  the  proper  department,  and  per- 
formed, nobody  would  deny  his  right  to  compensation,  if  the  law 


310  COMPENSATION  OP  OPPICBBS. 

authorized  and  required  the  service  to  be  done,  and  fixed  the 
compensation  for  it. 

Upon  the  case,  therefore,  as  the  plaintiff  in  error  offered  to  prove 
it,  we  think  the  court  erred  in  refusing  to  admit  the  testimony. 

Undoubtedly,  Congress  have  the  power  to  prohibit  the  Secre- 
tary from  demanding  or  receiving  of  a  public  oflScer  any  service  in 
any  other  office  or  capacity,  and  to  prohibit  the  same  person  from 
accepting  or  executing  the  duties  of  any  agency  for  the  gov- 
ernment, of  any  description,  while  he  is  in  office,. and  to  deny 
compensation  altogether,  if  the  officer  chooses  to  perform  the  serv- 
ices ;  or  they  may  require  an  officer  holding  an  office  with  a  certain 
salary,  however  small,  to  perform  any  duty  directed  by  the  head  of 
the  department,  however  onerous  or  hazardous,  without  additional 
compensation.  But  the  legislative  department  of  the  govern- 
ment have  never  acted  upon  such  principles,  nor  is  there  any  law 
which  looks  to  such  a  policy,  or  to  such  unlimited  power  in  the  head 
of  an  executive  department  over  its  subordinate  officers. 

No  explanation  is  given  of  the  principle  upon  which  the  fourj 
hundred   dollars   additional   compensation   was   allowed.      If  the 
services  were  regarded  as  extra  and  additional,  and  within  the  \ 
prohibition  of  the  law,  then  he  was  not  entitled  to  this  additional  J 
allowance,  because  his  salary  exceeded  twenty-five  hundred  dollars  ) 
and  nothing  more  than  the  salary  fixed  ought  to  have  been  allowed  j 
him.     But  if  they  were  not  within  the  prohibition,  but  for  serv-\ 
ices  in  a  different  agency,  then  he  was  entitled,  not  merely  to  four   1 
hundred  dollars,  but  to  the  commission  fixed  by  law.     This  sum 
could  not  have  been  allowed  for  supplies  in  his  own  district,  ex- 
cluding those  for  other  districts,  because,  as  regards  his  own  districts 
there  is  an  express  prohibition  as  above  stated.    We,  however,  ex- 
press no  opinion  upon  that  particular  item,  and  whether  it  is  a 
proper  allowance  or  not,  must  be  determined  by  the  circuit  courtJ 
when  it  hears  the  evidence  at  the  trial. 

For  the  reasons  above  stated,  the  judgment  of  the  Circuit  Court 
must  be  reversed. 

Mr.  Justice  Catron,  Mr.  Justice  Grier,  and  Mr.  Justice  Camp- 
bell  dissented. 

The  doctrine  of  the  principal  case  Is  also  applied  where  there  Is  no  pro- 
vision of  law  as  to  extra  compensation.  Thus  where  the  mayor  of  a  city 
Is  employed  to  defend  a  suit  against  the  city  he  may  recover  for  his  ser- 
vices.   Nlles  V.  Muzzy,  33  Mich.  61. 


UNITED  STATES  V.  SAUNDERS.  311 

UNITED  STATES  V.  SAUNDERS. 

Supreme  Court  of  the  United  States.    January,  1887. 
120  V.  8. 126. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

Saunders,  appellee  in  this  case  recovered  against  the  United 
States  in  the  Court  of  Claims  a  judgment  for  $1,627.00,  from 
which  the  United  States  appealed.  The  recovery  was  for  the 
salary  of  the  claimant  as  clerk  of  the  Committee  on  Commerce 
of  the  House  of  Representatives,  from  the  14th  day  of  March,  1885, 
to  the  7th  day  of  January,  1886,  at  the  rate  of  $2,000.00  per  an- 
num. 

Mr.  Saunders  held  this  place  from  the  1st  day  of  July,  1884, 
when  he  was  appointed,  up  to  the  7th  day  of  January,  1886,  when 
his  successor  was  appointed.  He  was  paid  the  compensation  up 
to  the  14th  of  March,  1885,  and  for  the  time  between  that  and  the 
7th  day  of  January,  1886,  the  Comptroller  refused  to  pay  him.  The 
various  appropriation  acts,  including  the  one  which  would  cover  the 
period  now  in  question,  had  all  made  appropriations  for  compensa- 
tion for  the  clerk  of  the  Committee  on  Commerce.  The  ground 
upon  which  payment  is  resisted  by  the  United  States  is,  that  the 
claimant  was,  on  the  14th  day  of  March,  1885,  appointed  a  clerk 
in  the  office  of  the  President  of  the  United  States,  since  which 
time  he  has  continued  to  perform  the  duties  of  that  office  and  re- 
ceive its  salary.  The  Comptroller,  in  his  decision  refusing  to  al- 
low the  claim,  places  his  objection  upon  section  1765  Rev.  Stat., 
and  upon  the  opinion  of  Attorney  General  Black,  in  regard  to  ex- 
tra pay  and  double  compensation,  delivered  in  1857.  9  Opinions 
Att'y  Gen.  123.  Section  1765  is  found  in  immediate  connection 
with  several  other  sections  on  the  same  subject,  of  which  the  two 
immediately  preceding  may  be  considered  to  some  extent  in  pari 
materia. 

The  general  question  here  raised  has  been  much  discussed  in 
the  opinions  of  the  Attorneys  General,  and  in  the  decisions  of 
this  court.  This  section  1765,  mainly  relied  upon  by  the  govern- 
ment, is  taken  from  two  statutes,  the  first  passed  March  3,  1839,  5 
Stat.  339,  349,  and  the  second,  August  23,  1842,  5  Stat.  508,  510. 
This  opinion  of  Attorney  General  Black  seems  to  be  in  conflict 
with  the  principles  laid  down  by  his  predecessors,  and  is  materially 


312  COMPENSATION  OF  OFFICERS. 

modified  if  not  overruled,  on  the  point  mainly  in  question  here, 
by  his  opinion  in  the  case  of  J.  P.  Brown,  on  page  507  of  the 
same  volume.  In  Hiero's  Case,  5  Opinions  Attys.  Gen.  765,  At- 
torney General  Crittenden  held  that  these  two  acts  of  1839  and 
1842  ''were  intended  to  fence  against  arbitrary  extra  allowances 
in  each  particular  case,  but  do  not  apply  to  distinct  employments, 
with  salaries  or  compensation  affixed  to  each  by  law  or  by  regula- 
tion." 

The  case  before  us  comes  within  the  terms  of  this  language, 
which  is  further  confirmed  by  the  fact  that  he  regarded  the  act 
of  1850  as  prohibiting  a  person  "from  receiving  the  salary  of  an 
office  which  he  does  not  hold,  and  not  against  his  receiving  the 
salaries  of  two  offices  which  he  does  legitimately  hold;"  and  we 
do  not  see  that  there  is  any  distinction  between  emoluments  re- 
ceived for  two  distinct  employments,  whether  offices  or  not,  the 
salaries  of  which  are  distinct,  and  the  services  rendered  distinct, 
both  appointments  being  held  by  the  same  person,  as  in  this  case. 
We  are  of  opinion  that,  taking  these  sections  all  together,  the  pur- 
pose of  this  legislation  was  to  prevent  a  person  holding  an  office 
or  appointment,  for  which  the  law  provides  a  definite  compensar 
tion  by  way  of  salary  or  otherwise,  which  is  intended  to  cover  all 
the  services  which,  as  such  officer,  he  may  be  called  upon  to  render, 
from  receiving  extra  compensation,  additional  allowances,  or  pay  | 
for  other  services  which  may  be  required  of  him  either  by  act  of  \ 
Congress  or  by  order  of  the  head  of  his  Department,  or  in  any  other  \ 
mode,  added  to  or  connected  with  the  regular  duties  of  the  place 
which  be  holds ;  but  that  they  have  no  application  to  the  case  of  two 
distinct  offices,  places,  or  employments,  each  of  which  has  its  own 
duties  and  its  own  compensation,  which  offices  may  both  be  held 
by  one  person  at  the  same  time.    In  the  latter  case  he  is  in  the  eye 
of  the  law  two  officers,  or  holds  two  places  or  appointments,  the 
functions  of  which  are  separate  and  distinct,  and,  according  to  all 
the  decisions,  he  is  in  such  case  entitled  to  recover  the  two  compen- 
sations.   In  the  former  case  he  performs  the  added  duties  under  his"^ 
appointment  to  a  single  place,  and  the  statute  has  provided  that  hey 
shall  receive  no  additional  compensation  for  that  class  of  duties 
unless  it  is  so  provided  by  special  legislation.    The  case  of  United 
States  V.  Brindle,  110  U.  S.  688,  in  which  an  Indian  agent  re- 
ceived large  additional  compensation  for  services  connected  with 
the  sale  of  lands  belonging  to  the  Indians  of  his  agency,  which  was 
affirmed  in  this  court,  was  upon  the  ground  that  these  additional 
services  were  performed  for  the  benefit  of  the  Indians,  and  the 


UNITED  STATES  V.  FLAIJDERS.  313 

statute  implied  the  payment  of  a  reasonable  compensation  for 
such  services.    See  also  Converse  v.  United  States,  21  How.  463. 

These  views  require  the  affirmance  of  the  judgment  of  the  Court 
01  Claims ;  and  it  is  ordered. 

Affirmed. 


UNITED  STATES  V.  FLANDERS  &  OTHERS. 

Supreme  Court  of  the  United  States.    October,  1884. 

112  United  States  Reports  88. 

Mr,  Justice  Blatchpord  delivered  the  opinion  of  the  court. 

This  is  a  suit  brought  by  the  United  States  in  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of  Louisiana,  against 
George  S.  Denison  and  the  sureties  on  his  bond,  as  collector  of 
internal  revenue  for  the  first  collection  district  of  Louisiana,  to  re- 
cover $4,3r46.84,  as  public  money  which  he  collected  and  did  not 
pay  over.  Three  of  the  sureties  defended  the  suit,  and,  on  a 
trial  before  a  jury,  there  was  a  verdict  in  their  favor,  and  a 
judgment  accordingly.  The  United  States  have  sued  out  a  writ  of 
error. 

The  answer  sets  up  that  Denison,  or  his  estate,  is  entitled  to 
further  credits  than  those  delivered  to  him,  which  claims  for  cred- 
its he  presented  to  the  accounting  officers  of  the  Treasury,  but 
they  disallowed  them,  to  the  amount  of  $4,199.74,  on  account  of 
his  compensation  as  collector,  and  to  the  amount  of  $777,  on  ac- 
count of  money  paid  by  him  for  necessary  and  legal  advertising. 

The  counsel  for  the  plaintiffs  requested  the  court  to  instruct  the 
jury,  that,  during  the  time  Denison  was  collector,  the  law  did 
not  provide  for  the  reimbursement  to  collectors  of  internal  revenue 
of  any  amount  expended  by  them  for  advertisements;  and  that, 
there  being  no  proof  that  the  Secretary  of  the  Treasury  had 
ever  made  any  allowance  to  Denison  for  amounts  expended  by  him 
for  advertisements,  nothing  could  be  allowed  to  the  defendants 
for  advertising.  The  court  refused  to  give  that  instruction,  but 
gave  the  following:  that  *'if,  in  accordance  with  the  terms  of  the 
statute,  defendant  Denison  was  required  as  collector  of  internal 
revenue,  to  make,  and  did  make,  in  certain  newspapers,  certain 
advertisements,  for  which  he  was  required  to  pay,  and  did  pay, 


814  COMPENSATION  OF  OFFICERS. 

and  if,  also,  the  jury  found  that  the  amounts  so  paid  were  reas- 
onable and  proper  amounts,  he  was  entitled  to  a  credit  for  the 
amounts  so  paid  by  him,  although  the  Secretary  of  the  Treasury 
had  made  no  allowance  to  him  therefor."  To  this  refusal  and 
instruction  the  plaintiffs  excepted. 

The  instruction  given  is  not  open  to  the  criticism  made,  that  it 
submitted  to  the  jury  a  question  of  law.  It  was  not  left  to  the* 
jury  to  determine  whether  the  advertising  for  which  credit  was 
claimed  was  such  as  the  collector  was  required  to  make,  in  the 
sense  that  it  was  left  to  the  jury  to  determine  what  advertisements 
the  law  required  to  be  made.  But  it  must  be  inferred,  that  the 
court  explained  the  statute  as  to  the  advertisements,  and  the  fair 
meaning  of  the  instruction  is,  that  it  was  left  to  the  jury  to  say 
whether,  in  view  of  the  advertisements  which  the  statute,  as  ex- 
plained by  the  court,  required,  those  made  by  the  collector  were 
such  advertisements,  and  were  made  and  were  paid  for,  and  were 
reasonable  and  proper  in  amount. 

In  Andrews  v.  United  States,  2  Story,  202,   which  was  a  suit  on 
the  bond  of  a  collector  of  customs,  Mr.  Justice  Story  held,  that 
expenditures,  by  a  collector  of  customs,  for  office  rent,  fuel,  clerk, 
hire,  and  stationery  were  properly  to  be  deemed  incident  to  the 
office,  and  ought,  therefore,  to  be  allowed  as  proper  charges  againstl 
the  United  States,  and  as  a  set-off  in  the  suit.    In  that  case,  the/ 
statute  required  the  collector  to  keep  and  transmit  accounts  ofl 
those  particular    expenditures.     The    Treasury    Department  dis- 
allowed them,  but  the  court  held,  that  the  statute  contemplated  \ 
their  allowance,  and  that  the  collector  had  a  right  to  be  reimbursed  \ 
their  amount,  even  though  he  did  not  keep  or  transmit  the  accounts^ 
of  them.    The  view  taken  was,  that,  if  a  claim,  though  not  strictly  1 
of  a  legal  nature,  was  ex  aequo  ex  hono  due  to  the  defendant,  for 
moneys  expended  on  account  of,  and  for  the  benefit  of  the  United 
States,  he  was  entitled  to  an  allowance  and  compensation  there-  J 
for,  upon  the  footing  a  quantum  meruit,  under  section  3  of  the/ 
Act  of  March  3,  1797,  1  Stat.  514.    That  statute  is  now  embodied 
in  §  957  of  the  Revised  Statutes,  which  provides  that,  in  all  suits 
against  a  person  accountable  for  public  moneys,  he  may  show  that 
he  is  equitably  entitled  to  credits  which  have  been  rejected.     In 
United  States  v.  Wilkins,  6  Wheat.  135,  144,  this  court  said,  of 
§  3  of  the  act  of  1797,  that  it  supposed  that  "not  merely  legal 
but  equitable  credits  ought  to  be  allowed  to  debtors  of  the  United 
States,  by  the  proper  offictrs  of  the  Treasury;"  that  all  such  cred- 


LOCKE  V.  THE  CITY  OF  CENTRAL,  315 

its  could  be  allowed  at  the  trial  of  the  suit ;  and  that  a  judgment 
was  required  for  such  sum  only  as  the  defendant,  in  equity  and 
justice,  should  be  proved  to  owe  to  the  United  States,  This  view 
was  affirmed  in  Gratiot  v.  United  States,  15  Pet.  336,  370,  and  in 
Watkins  v.  United  States,  9  Wall.  759,  765.  ^ 

In  the  present  case,  the  statute  required  the  advertisements  to 
be  made,  and  there  is  nothing  in  it  which  implies  that  they  are/ 
to  be  paid  for  out  of  the  compensation  to  be  allowed,  or  that  theyl 
are  to  be  reimbursed  because  they  are  not  named  with  stationery' 
and  blank  books,  or  because  "advertising"  was  first  inserted  in 
the  act  of  1865.     In  section  115  of  the  same  act  of  July  1,  1862, 
12  Stat.  488,  it  was  provided,  that  the  pay  of  collectors  should  be 
paid  out  of  the  accruing  internal  duties  or  taxes,  before  they 
were  paid  into  the  Treasury,  and  $500,000  was  appropriated  ''for 
the  purpose  of  paying"  various  specified  expenses,  including  "ad- 
vertising and  any  other  expenses  of  carrying  this  act  into  effect. 
This  advertising  was  an  expense  of  carrying  the  act  into  effect, 
and  was  aside  from  the  pay  of  the  collector,  and  was  to  be  paid""] 
out  of  the  Treasury,  as  an  expense.     The  allowance  of  it  by  the-i 
accounting  officers  or  otherwise  was  not  a  prerequisite  to  the  right 
of  Denison  to  have  it  credited  to  him  in  this  suit.     Campbell  v. 
United  States,  107  U.  S.  407. 

The  judgment  of  the  Circuit  Court  is  affirmed. 

The  same  rule  is  applied  where  the  expenses  have  been  incurred  at  the 
instance  and  for  the  benefit  of  a  third  person.  Maitland  v.  Martin,  86 
Pa.  St.  120. 


II.    Relation  to  Work  Done. 

LOCKE  V.  THE  CITY  OF  CENTRAL. 

Supreme  Court  of  Colorado.    April,  1878. 
4  Colorado,  65. 

'Judgment  of  nonsuit  was  entered  against  the  plaintiff  in  the 
court  below. 

Thatcher,  C.  J.  In  April,  1874,  Bradford  H.  Locke  was  duly 
elected  by  the  council  of  the  city  of  Central,  as  city  surveyor  for 
the  then  ensuing  municipal  year.  His  general  duties  were  pre- 
scribed by  ordinance;  which  also  provided  that  he  should  "per- 


316  COarPENSATION    OF   OFFICERS. 

form  such  other  duties  as  might  be  enjoined  upon  him  by  ordinance 
or  resolution  of  the  city  council."  The  same  ordinance  prescribed 
the  compensation  he  should  receive  for  surveying,  subdivding  or 
giving  the  grade  of  any  lot  or  piece  of  ground  within  the  city, 
and  furnishing  a  certificate  thereof — ^which  compensation  was  to 
be  paid  by  the  parties  at  whose  request  such  work  was  done.  The 
ordinance  is  silent  as  to  fees  to  be  paid  the  city  surveyor  for  all 
other  services.  It  was  admitted  at  the  trial  that  he  had  received 
full  compensation  for  such  work  as  the  ordinance  prescribed  fees. 
The  suit  was  instituted  to  recover  for  the  performance  of  various 
duties,  imposed  upon  him  by  ordinance  or  resolution,  for  which  no 
fees  were  fixed.  The  plaintiff  proceeded  upon  the  notion  that  upon 
an  implied  assumpsit  he  was  entitled  to  recover  from  the  municipal 
corporation  whatever  his  services  were  reasonably  worth  for  the 
ilischarge  of  all  duties  for  which  the  ordinance  allowed  no  compen- 
sation. 

It  is  competent  for  the  city  council  to  increase  or  diminish  the 
fees  pertaining  to  the  office  of  city  surveyor,  or  abolish  them  al- 
together. Its  incumbent,  if  the  fees  be  diminished  or  entirely  taken 
away,  may  at  once  resign.  As  the  relation  between  himself  and 
the  city  does  not  rest  upon  contract,  he  is  not  legally  bound  to  con- 
tinue his  services  until  the  expiration  of  his  term.  But  having 
accepted  the  office,  as  long  as  he  performs  its  duties,  the  measure  of 
his  compensation  must  be  determined  by  the  city  authorities. 

Where  the  relation  of  employer  and  employee  exists  both  par- 
ties are  bound  by  the  terms  of  the  contract.    If  either  party  vio- 
lates his  agreement  with  the  other,  he  may  sue  for  breach  of  con- 
tract.   If  the  employer  discharge  the  employee  before  the  expira- 
tion of  his  term  of  service,  he  can  be  made  to  respond  in  dam- 
ages.    But  between  a  municipal  corporation  and  its  officers,  a. 
very  different  relation  exists.    If  an  officer  neglects  to  perform  his/ 
duties,  the  municipality  has  no  remedy  against  him  for  breach/ 
of  contract.     At  his  pleasure  he  may  relinquish  his  office.     His 
remuneration  for  services  to  be  rendered  may,  in  the    absence  of 
any  charter  restriction,  be  changed  from  time  to  time  at  the  will  of 
the  city  council.    In  the  City  of  Hoboken  v.  Gear,  3  Dutcher,  278, 
the  court  says:     "An  appointment  to  a   public   office,    therefore;] 
either  by  the  government  or  by  a  municipal  corporation,  under! 
a  law  fixing  the  compensation  and  the  term  of  its  continuance,! 
is  neither  a  contract  between  the  public  and  the  officer  that  the  1 
service  shall  continue  during  the  designated  term,  nor  that  the  j 
salary  shall  not  be  changed  during  the  term  of  office.    It  is,  at  most^ 


FITZSIMMONS  V.    CITY   OF  BROOKLYN.  317 

a  contract  that  while  the  party  continues  to  perform  the  duties 
of  the  office  he  shall  receive  the  compensation  which  may  from 
time  to  time  he  provided  hy  law."  See,  also,  Baker  v.  The  City  of 
Utica,  19  N.  Y.  326 ;  Smith  v.  The  Mayor  of  New  York,  37  id.  520 ; 
The  Commonwealth  v.  Bacon,  6  Serg,  &  Rawle,  322. 

As  the  city  surveyor  entered  upon  the  performance  of  the  duties 
incident  to  his  office  with  reference  to  the  provisions  of  the  city 
charter  and  ordinances,  no  assumpsit  is  implied  on  the  part  of  the 
corporation  in  respect  to  his  services.  1  Dill,  on  Mun.  Corp.  §  169, 
and  cases  cited. 

That  during  the  year  the  plaintiff  in  error  served  the  city  of 
Central  the  duties  of  the  city  surveyor  were  more  onerous  than 
usual,  by  reason  of  the  great  fire  that  had  destroyed  a  large  portion 
of  the  city,  cannot  be  held  to  affect  or  modify  the  rule  here  laid 
down.  A  departure  from  it  cannot  but  be  fraught  with  mischief' 
to  the  public  service.  Whether  the  dictate  of  common  honesty, 
under  the  peculiar  state  of  facts  presented  by  the  record  in  this 
cause,  should  have  prompted  the  city  council  to  make  the  city  sur- 
veyor additional  allowance  for  his  services,  it  is  not  our  province 
to  determine. 

It  will  follow  from  what  we  have  before  said  in  relation  to  im- 
plied assumpsit,  that  the  offer  to  prove  that  the  city  council  had 
paid  its  former  "surveyors  on  bills  presented  from  time  to  time 
irrespective  of  said  ordinance' '  was  properly  rejected. 

The  judgment  of  the  court  below  is  affirmed  with  costs. 

Affirmed. 


FITZSIMMONS  V.  CITY  OF  BROOKLYN. 

Court  of  Appeals  of  New  York.     June,  1886. 
102  N.  Y.  536. 

Finch,  J.  This  case  presents  the  question  whether  an  officer 
entitled  by  law  to  a  fixed  annual  salary,  but  prevented  for  a  time 
by  no  default  of  his  own  from  performing  the  duties  of  his  office, 
and  earning  during  that  time  the  wages  of  another  and  different 
employment,  must  deduct  them  from  his  recovery  when  he  sues 
for  his  unpaid  salary. 


318  COMPENSATION   OP   OFFICERS. 

The  plaintiff  was  a  policeman  of  the  city  of  Brooklyn,  duly 
appointed  to  that  office  and  having  entered  upon  the  performance 
of  its  duties.  He  was  attempted  to  be  removed  from  office  by  the 
police  commissioners,  but  upon  a  certiorari  the  order  of  removal 
was  reversed  and  the  plaintiff  restored  to  his  office.  Between  the 
order  of  removal  and  that  of  restoration  he  rendered  no  service 
as  policeman,  because  not  permitted  so  to  do,  but  during  the  inter- 
val resumed  for  a  time  his  old  occupation  as  a  machinist,  and  that 
failing,  engaged  in  work  at  Schutzen  park,  the  character  of  which 
is  not  disclosed;  and  from  these  two  sources  earned  during  the 
period  of  his  removal  the  sum  of  $500.  The  defendant  conceded 
that  plaintiff  was  entitled  to  recover  the  unpaid  salary  of  his  of- 
fice, but  insisted  that  his  earnings  of  $500  should  be  applied  upon 
and  deducted  from  it.  The  court  refused  the  deduction,  the  Gen- 
eral Term  affirmed  the  judgment,  and  the  defendant  brought  this 
appeal. 

The  rule  sought  to  be  applied  by  the  city  to  the  claim  of  the 
plaintiff  finds  its  usual  and  ordinary  operation  in  cases  of  master 
and  servant  and  landlord  and  tenant;  relations  not  at  all  analo- 
gous to  those  existing  between  the  officer  and  the  state  or  municipal- 
ity. The  rule  in  those  cases  is  founded  upon  the  fact  that  the  ac-^ 
tion  is  brought  for  a  breach  of  contract  and  aims  to  recover  dam- 
ages for  that  breach,  or  compensation  for  the  servant's  loss  actu-, 
ally  sustained  by  the  default  of  the  master.  That  loss  he  is  re- 
quired to  make  as  small  as  he  reasonably  can.  His  discharge  with-l 
out  just  cause  is  not  a  license  for  voluntary  idleness  at  the  expense 
of  the  master.  If  he  can  obtain  other  employment  he  is  bound  to  do 
80,  and,  if  he  engages  in  other  service,  what  he  thus  earns  reduces 
his  loss  flowing  from  the  broken  contract.  But  this  rule  of  dam- 
ages has  no  application  to  the  case  of  an  officer  suing  for  his  sal- 
ary, and  for  the  obvious  reason  that  there  is  no  broken  contract 
or  damages  for  its  breach  where  there  is  no  contract.  We  have 
often  held  that  there  is  no  contract  between  the  officer  and  state 
or  municipality  by  force  of  which  the  salary  is  payable.  That 
belongs  to  him  as  an  incident  of  his  office,  and  so  long  as  he  holds 
it;  and  when  improperly  withheld  he  may  sue  for  it  and  recover 
it.  When  he  does  so  he  is  entitled  to  its  full  amount,  not  by  force 
of  any  contract,  but  because  the  law  attaches  it  to  the  office;  and 
there  is  no  question  of  breach  of  contract  or  resultant  damages  out 
of  which  the  doctrine  invoked  has  grown.  We  think,  therefore,  it 
has  no  application  to  the  case  at  bar,  and  the  courts  below  were 


o'leary  v.  board  of  education.  319 

right  in  refusing  to  diminish  the  recovery  by  applying  the  wages 
earned. 

The  judgment  should  be  affirmed,  with  costs. 

Judgment  affirmed. 

All  concur. 

But  one  who  Is  rightfully  suspended  has  no  claim  for  salary  even  if  re- 
instated.   Embry  v.  United  States,  100  U.  S.  680. 


O'LEARY  V.  BOARD  OP  EDUCATION. 

Court  of  Appeals  of  New  York.    June,  1883. 
93  N.  Y.  1. 

Miller,  J.  The  plaintiff  claims  to  recover  for  his  salary  as  a 
clerk  in  the  employment  of  the  board  of  education,  from  the  first 
of  May,  1871,  to  the  26th  of  September,  1871,  when  the  finance 
committee  by  a  resolution,  directed  that  he  be  removed,  and  that 
his  removal  take  effect  from  the  1st  of  May,  previous.  The  plain- 
tiff was  appointed  to  his  position  in  1869  and  rendered  services 
until  November,  1870,  when  he  made  application,  stating  that  he 
was  about  to  have  an  operation  for  cataract  performed,  and  asking 

for  leave  of  absence  until  his  sight  should  be  restored 

Upon  the  letter  asking  for  leave,  and  filed  with  the  board  of  edu- 
cation, was  an  endorsement,  signed  with  the  initials  of  the  chair- 
man of  the  finance  committee,  to  the  effect  that  it  was  granted  with 
inquiries  to  be  made  from  time  to  time  by  the  clerk  of  the  board. 
It  would  thus  seem  that  the  board  of  education  had  cognizance 
of  the  application  and  through  its  financial  officer  signified  its  as- 
sent to  the  same.  The  plaintiff  had  an  operaljion  performed,  and 
reported  at  the  office  of  the  board  in  February,  1871,  but  being 
still  unable  to  perform  any  duty,  on  account  of  his  eyes,  he  was 
obliged  to  have  another  operation  performed  in  the  month  of  March. 
He  again  reported  in  May,  1871,  and  stated  to  the  president  of  the 
board  and  one  of  the  officers  that  he  was  advised  to  go  to  Ireland 
for  the  benefit  of  his  health.  He  presented  to  them  the  doctor's 
certificate  and  they  told  him  he  could  go.  Upon  the  facts  stated 
there  would  seem  to  be  no  question  but  that  the  plaintiff  acted 
under  a  belief  that  he  had  a  leave  of  absence  which  authorized 
him  to  go  to  Europe  on  account  of  the  difficulty  under  which  he 


320  COMPENSATION   OF  OPPICEBS. 

labored,  and  it  would  seem  that  the  officers  of  the  defendant,  with 
whom  he  had  communication  on  the  subject,  must  have  supposed 
that  such  was  his  intention.  It  is  true  the  leave  of  absence  was 
somewhat  indefinite,  no  time  being  fixed  by  which  it  was  limited 
to  any  particular  period;  but  the  leave  of  absence  which  was 
granted  could  have  been  withdrawn  at  any  time  by  the  defendant, 
or,  in  the  discretion  of  the  board,  brought  to  an  end  by  a  notice] 
to  plaintiff  that  his  services  were  no  longer  required,  or  a  resolu- 
tion discharging  him  from  his  position  would  have  relieved  the 
defendant  from  the  effect  of  the  permission  granted  to  him  and 
exonerated  it  from  all  liability.  This  was  not  done  until  September 
following,  as  already  stated,  when  he  was  informed  that  his  serv- 
ices were  no  longer  required.  That  the  defendant  considered  the 
plaintiff  in  its  employment  until  he  was  thus  discharged  is  indi- 
cated very  clearly  by  its  action  in  regard  to  the  payment  of  his 
salary.  The  pay-rolls  for  the  months  of  May  and  June  show  that 
the  plaintiff's  salary  for  these  months  was  audited  by  the  auditing 
committee  of  the  board.  The  defendant  thus  recognized  that  the 
plaintiff  was  still  in  its  employment  and  entitled  to  pay  as  one  of 
its  employes.  This  was  an  approval  and  a  ratification  of  the  leave 
which  had  been  previously  granted,  and  even  if  such  leave  orig- 
inally, of  itself,  was  insufficient,  the  subsequent  action  in  allowing 
plaintiff  the  amount  of  his  salary  he  claimed  to  be  entitled  to, 
evinces  that  the  defendant  assented  to  his  absence  and  considered 
him  still  in  its  employment.  The  plaintiff  was  clearly  entitled  to 
the  amount  of  salary  which  had  been  audited  to  him  for  the  months 
of  May  and  June,  nor  are  we  able  to  see  any  reason  why  he  should 
not  be  entitled  to  his  salary  subsequent  to  that  period  and  up  to 
the  time  when  the  resolution  of  removal  was  adopted.  He  left  for 
Europe  on  the  15th  of  May,  and  at  that  time  no  action  had  been 
taken  by  the  defendant.  He  was  clearly  entitled  to  his  salary  up 
to  that  date,  and  the  auditing  of  the  bills  continued  it  up  to  the  1st 
of  July.  After  that  and  until  the  early  part  of  September  the 
public  schools  were  closed,  as  was  also  the  office  of  the  department 
and  the  general  office,  and  all  the  employes  went  on  their  vacation. 
There  was  then  no  service  for  the  plaintiff  to  perform  during  this 
period,  and  he  had  the  leisure  which  was  allotted  to  all  in  the  de- 
partment and  to  which  he  was  clearly  entitled  with  them. 

The  defendant  having  excused  the  plaintiff  for  good  cause  and 
sufficient  reasons  from  a  temporary  discharge  of  his  duty,  and 
failing  to  take  any  action  indicating  its  intention  to  relieve  him 
from  his  office,  we  think  must  be  regarded  as  assenting  to  his  ab- 


o'leary  v.  board  of  education.  321 

sence  and  it  is  estopped  from  insisting  or  claiming  that  the  plain- 
tiff was  not  in  its  employment.  If  it  was  considered  that  his 
duties  were  at  an  end,  some  steps  should  have  been  taken  and  he 
notified  that  such  was  the  intention  of  the  board.  ♦ 

"When  the  salary  of  a  public  officer  is  fixed,  such  officer  is  entitled 
to  his  salary  and  it  cannot  be  taken  away  except  for  good  and  suf- 
ficient cause.  While  sickness  in  some  cases  may  furnish  sufficient 
reason  for  the  removal  of  such  officer,  yet  where  the  evidence  shows 
that  his  absence  on  account  of  the  same  has  been  permitted,  no 
valid  reason  exists  why  he  should  not  be  entitled  to  compensation 
until  some  action  is  taken  on  the  subject.  People  ex  rel.  Ryan  v. 
French,  14  W'kly  Dig.  173.  The  resolution  of  the  auditing  com- 
mittee, so  far  as  it  purposed  to  affect  and  date  back  the  plaintiff's 
removal  to  the  first  day  of  May,  could  have  no  force.  It  could  not 
impair  the  leave  of  absence  which  had  previously  been  granted  and 
which  was  subsequently  ratified  by  the  action  of  the  board.  The 
rights  of  the  plaintiff  which  had  accrued  prior  to  the  resolution, 
could  not  be  affected  thereby,  it  was  retrospective  in  its  character 
and  operation  and  without  any  validity  whatever. 

We  think  that  the  finding  of  the  referee,  that  the  plaintiff  was 
not  in  the  employment  of  the  defendant,  was  erroneous  and  cannot 
be  upheld.  The  claim  of  the  respondent's  counsel  that  the  resolu- 
tion of  the  finance  committee  was  not  sufficient  to  relieve  plaintiff 
from  service  cannot  be  sustained.  There  is  nothing  to  show  a 
want  of  authority  in  such  committee,  and  the  presumption  is  that 
it  was  authorized,  in  view  of  all  the  facts,  to  grant  him  leave  of 
absence.  The  subsequent  action  in  auditing  the  plaintiff's  salary 
and  the  failure  of  the  board  to  take  any  action  discharging  him, 
until  the  resolution  of  the  finance  committee  in  September,  to  which 
reference  has  been  had,  evinces  that  the  leave  of  absence  was 
granted  by  the  proper  authority.  There  is  no  ground  for  claiming 
that  the  allowance  of  the  plaintiff's  claim  was  in  the  nature  of  a 
pension  or  a  gratuity  and  without  the  sanction  of  law.  A  discre- 
tionary power  must  exist  in  a  board  of  public  officers  to  determine 
when  and  to  what  extent  persons  in  their  employment  should  be 
excused  by  reason  of  sickness  or  temporary  disability,  and  unless 
it  is  clear  that  such  discretion  has  been  abused  it  should  not  be  over- 
ruled and  disregarded.  In  the  case  of  People  ex  rel.  Burnet  v. 
Jackson,  85  N.  Y.  541,  the  board  allowed  payment  to  the  estate  of 
a  deceased  teacher,  and  the  question  involved  was  entirely  of  a 
different  character  from  the  one  here  presented.  The  principle 
a 


322  COMPENSATION    OP   OFFICERS. 

there  involved  has  no  application  to  the  case  at  bar,  where  the 
officer  was  recognized  as  being  in  the  employment  of  the  board. 
The  case  now  presented  does  not  involve  the  question  as  to  the 
♦  power  to  grant  gratuities  as  additional  compensation  for  services 
rendered  which  are  not  authorized  by  law. 

We  think  the  defendant  was  clearly  liable  for  the  payment  of 
the  plaintiff's  claim,  and  the  judgment  should  be  reversed,  a  new 
trial  granted,  costs  to  abide  the  event. 

All  concur,  except  Ai«)rews  and  Earl,  JJ.,  dissenting. 

Judgment  reversed. 

See  also  Dolan  v.  Mayor.  68  N.  Y.  274  and  Nichols  v.  MacLean,  101  N,  T. 
526,  supra. 


III.    Change  op  Compensation. 

KEHN  V.  STATE  OF  NEW  YORK. 

Court  of  Appeals  of  New  York.    October,  1883. 
93  N.  Y.  291. 

Rapallo,  J.  The  uncontroverted  evidence  shows  that  on  the  1st 
of  May,  1880,  the  appellant  was  employed  by  Mr.  Hyde,  superin- 
tendent of  the  old  capitol,  as  fireman  therein,  and  continued  to 
serve  in  that  capacity  from  the  time  of  his  employment  until  the 
filing  of  his  claim  before  the  board  of  audit,  which  was  in  November 
or  December,  1881. 

He  claims  pay  at  the  rate  of  $3  per  day  during  that  period  by 
virtue  of  a  provision  in  the  general  appropriation  acts  of  1875, 
which  reads  as  follows:  "And  the  compensation  of  the  men  em- 
ployed as  firemen  in  the  capitol  is  hereby  fixed  at  $3  per  day  to 
each  of  them.  Such  salaries  shall  be  paid  upon  the  certificate  of 
the  keeper  of  the  capitol." 

The  appellant  was  paid  at  the  rate  thus  prescribed  by  law  from 
the  time  of  his  employment  up  to  the  24th  of  May,  1880,  when  the 
superintendent  claiming  to  act  under  the  direction  of  the  comp- 
troller, refused  to  allow  him  more  than  $1.50  per  day  during  the 
summer  months,  and  he  made  this  reduction  for  the  periods  from 
May  24,  1880,  to  September  30,  1880,  from  May  21,  1881,  to  June 
30,  1881.  The  appellant  received  the  reduced  pay  during  these 
periods,  but  there  is  no  evidence  that  he  ever  agreed  to  the  r©- 


KEHN  V.  STATE  OF  NEW  YORK.  323 

duction.  From  ^^une  30,  1881,  to  September  30,  1881,  he  declined 
to  receive  the  reduced  pay,  and  has  been  paid  nothing.  The  pre- 
sent claim  is  for  the  sums  necessary  to  make  up  his  full  pay  of  $3 
per  day  up  to  September  30,  1881. 

The  board  of  audit  rejected  the  claim,  and  on  appeal  to  the 
Supreme  Court,  the  General  Term  sustained  the  decision  on  two 
grounds.  First,  that  the  appellant  was  hired  and  agreed  to  work 
for  $1.50  per  day,  and  was  not  employed  as  fireman.  Second,  that, 
if  otherwise,  the  rate  fixed  by  statute  as  fireman's  pay  might  be 
modified  and  reduced  by  the  agreement  of  the  parties. 

The  first  ground  is,  we  think,  wholly  untenable  under  the  evi- 
dence. 

As  to  the  second  ground  upon  which  the  General  Term  place  their 
decision,  we  think  it  comes  within  the  decision  of  this  court  in 
People  ex  rel.  Satterlee  v.  Board  of  Police,  75  N.  Y.  38,  where  it 
was  held  that  the  board  of  police  commissioners  could  not  reduce  the 
amount  fixed  by  law  as  the  salary  of  a  police  surgeon  and  procure 
persons  to  act  at  a  less  sum  than  the  statute  prescribed.  To  the 
same  effect  is  Goldborough  v.  U.  S.,  Taney's  C.  C.  Decisions  80, 
In  that  case  it  was  further  held  that  it  was  immaterial  whether  the 
person  whose  salary  is  fixed  by  law  is  or  is  not  an  officer,  so  long 
as  he  is  specified  in  the  law  fixing  his  salary. 

The  present  case  however  is  stronger  than  either  of  those  cited. 
At  the  time  appellant  entered  into  the  service  his  pay  was  fixed  by 
law  and  there  is  no  evidence  that  he  ever  consented  to  a  change.  It 
was  reduced  by  the  superintendent  and  for  a  portion  of  the  time 
the  appellant  took  the  reduced  pay  but  that  does  not  estop  him 
from  claiming  his  full  pay  if  he  was  legally  entitled  to  it.  Mon- 
tague's  Adm'r  v.  Massey,  13  Reporter  701. 

"We  think  the  appellant  was  entitled  to  a  salary  of  $3  per  day  so 
long  as  he  was  retained  as  fireman  and  that  his  claim  should  have 
been  allowed. 

The  judgments  of  the  General  Term  and  of  the  board  of  audit 
should,  therefore,  be  reversed  and  judgment  rendered  in  favor  of 
the  appellant  for  the  amount  of  his  claim,  with  costs. 

All  concur,  except  Earl,  J.,  not  voting. 

Judgment  accordingly. 

The  same  rule  Is  applied  in  case  the  compensation  consists  of  fees. 
Hewitt  v.  White,  78  Mich.  117. 


824  COMPENSATION   OF   OFFICERS. 

UNITED  STATES  V.  LANGSTON. 

Supreme  Court  of  the   United  States.    May,  1886. 
118  U.  8.  389. 

This  was  a  petition  in  the  Court  of  Claims  to  recover  an  unpaid 
balance  of  salary  claimed  to  be  due  defendant  in  error  as  minister 
resident  at  Hayti.  The  defence  was  that  Congress,  by  appropriat- 
ing a  lesser  sum,  had  indicated  its  purpose  to  reduce  the  salary. 
The  case  is  stated  in  the  opinion  of  the  court.  Judgment  below 
in  favor  of  the  plaintiff  from  which  the  defendant  appealed. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

From  September  28,  1877,  until  July  24,  1885,  the  claimant, 
John  M.  Langston,  held  the  office  of  Minister  Resident  and  Consul 
General  of  the  United  States  at  the  Republic  of  Hayti.  At  the 
time  he  entered  upon  the  discharge  of  his  duties  it  was  provided  by 
statute  as  follows:  "There  shall  be  a  diplomatic  representative  of 
the  United  States  to  each  of  the  Republics  of  Haj-ti  and  Liberia, 
who  shall  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  and  shall  be  accredited  as  Minister  Resi- 
dent and  Consul  General.  The  representative  at  Hayti  shall  be 
entitled  to  a  salary  of  $7,500  a  year,  and  the  representative  at 
Liberia  to  a  salary  not  exceeding  $4,000  a  year.  "  Rev.  Stat.  § 
1683.  The  sum  of  $7,500  was  annually  appropriated  for  the  salary 
of  the  minister  to  Hayti,  from  the  creation  of  the  office  until  the 
year  1883. 

In  the  Diplomatic  and  Consular  Appropriation  Act  of  July  1, 
1882,  certain  suras  were  appropriated  "for  the  service  of  the  fiscal 
year  ending  June  30,  1883,  out  of  any  money  in  the  treasury,  not 
otherwise  appropriated,  for  the  object  therein  expressed,"  one  of 
them  being  * '  for  ministers  resident  and  consuls  general  to  Liberia, 
Hayti,  Switzerland,  Denmark,  and  Portugal,  at  $5,000  each,  $25,- 
000."  22  Stat.  128.  The  same  act  provided  that  "hereafter  the  Sec- 
retary of  State  shall,  in  the  estimate  of  the  annual  expenditures  of 
diplomatic  and  consular  service,  estimate  for  the  entire  amount  re- 
quired for  its  support,  including  all  commercial  agents,  and  other 
officers,  whether  paid  by  fees  or  otherwise,  specifying  the  compensa- 
tion to  be  allowed  or  deemed  advisable  in  each  individual  case."  22 
Stat.  133.  It  is  stated  in  the  brief  of  the  Attorney  General  that  the 
Secretary  of  State  made  a  specific  estimate  for  the  salary  of  the 
minister  resident  and  consul  general  to  Hajiii  for  the  fiscal  year 


UNITED  STATES  V.  LANGSTON.  325 

commencing  July  1,  1883  and  1884,  and  that  that  estimate  was 
$5000  in  each  report.  For  each  of  the  fiscal  years  ending  June  30, 
1884,  and  June  30,  1885,  the  appropriation  for  the  minister  resi- 
dent and  consul  general  at  Hayti  was  $5000,  and  in  the  same  lang- 
uage as  that  employed  in  reference  to  that  officer  in  the  act  for  the 
fiscal  year  ending  June  30,  1883. 

The  claimant  was  paid  at  the  rate  of  $7500  a  year  up  to  and 
including  June  30,  1882,  and  for  the  balance  of  his  term  at  the  rate 
only  of  $5000  a  year.  He  brought  this  suit  to  recover  the  difference 
between  those  amounts  for  the  period  from  June  30,  1882,  to  July/ 
24,  1885.  His  claim  was  sustained  in  the  court  below,  and  judg- 
ment was  rendered  in  his  behalf  for  $7666.66. 

This  case  is  distinguishable  from  United  States  v.  Fisher,  109 
U.  S.  143,  146,  and  United  States  v.  Mitchell,  109  U.  S.  146,  149. 
In  Fisher's  case  it  was  held  that  the  clause  in  the  Revised  Statutes, 
fixing  the  salary  of  the  Chief  Justice  and  associate  justice  of  Wyom- 
ing at  $3,000  per  annum,  was  suspended  by  the  provision  in  each 
of  the  appropriation  acts,  for  the  legislative,  executive,  and  judi- 
cial expenses  of  the  government  for  the  fiscal  year  ending  June 
30,  1879  and  1880,  which  declared  that  the  sum  therein  specified — 
among  which  was  $2,600  each  to  the  governor,  chief  justice,  and  two 
associate  justices  of  Wyoming — ^were  appropriated  "in  full  com- 
pensation" for  the  service  of  those  years.  The  claim  of  Fisher  for 
compensation,  on  the  basis  fixed  by  the  Revised  Statutes,  was  conse- 
quently rejected.  This  court  said:  **We  cannot  adopt  the  view 
of  the  appellee,  unless  we  eliminate  from  the  statutes  the  words 
*in  full  compensation,'  which  Congress,  abandoning  the  long  used 
form  of  the  appropriation  acts,  has  ex  industria  inserted.  Our  duty 
is  to  give  them  effect.  When  Congress  has  said  that  the  sum  ap- 
propriated shall  be  in  full  compensation  of  the  services  of  the  ap- 
pellee, we  cannot  say  that  it  shall  not  be  in  full  compensation,  and 
allow  him  a  greater  sum. ' ' 

In  Mitchell's  case,  the  claim  was  for  compensation  as  an  Indian 
interpreter  under  §§  2070  and  2076  of  the  Revised  Statutes,  the  first 
one  of  which  declared  that  interpreters  of  a  certain  class  shall  be 
paid  $400  a  year  each,  and  by  the  second  one  of  which  it  was 
provided  that  the  several  compensations  prescribed  **  shall  be  in 
full  of  all  emoluments  and  allowances  whatsoever."  During  the 
period  for  which  Mitchell  claimed  compensation  at  that  rate,  he 
received  pay  at  the  rate  of  $300  per  annum,  under  acts  appropriat- 
ing various  sums  for  interpreters,  including  seven  interpreters  for 


326  COMPENSATION   OP   OFPICEES. 

the  Indian  tribes  among  whom  Mitchell  was  assigned  to  duty,  "at 
$300  per  annum,  $2,100."  19  Stat.  271.  In  those  acts  there  was 
also  a  clause  to  this  effect:  **For  additional  pay  of  said  interpre- 
ters, to  be  distributed  in  the  discretion  of  the  Secretary  of  the  In- 
terior, $6,000."  It  was  held  that  these  acts  manifested  a  change  of 
policy  upon  the  part  of  Congress,  "namely,  that  instead  of  estab- 
lishing a  salary  for  interpreters  at  a  fixed  amount,  and  cutting  off 
all  other  emoluments  and  allowances.  Congress  intended  to  reduce 
the  salaries,  and  place  a  fund  at  the  disposal  of  the  Secretary  of 
the  Interior  from  which,  at  his  discretion,  additional  allowances 
and  emoluments  might  be  given  to  the  interpreters,"  The  appro- 
priation by  those  acts  for  a  fixed  sum  as  compensation  for  certain 
interpreters  during  a  prescribed  period,  followed  by  the  appropria- 
tion of  a  round  sum  as  additional  pay,  to  be  distributed  among  them 
in  the  discretion  of  one  of  the  Executive  Departments,  evinced 
the  intention  of  Congress  not  to  allow  further  compensation  to  such 
appointees  during  the  periods  specified. 

The  case  before  us  does  not  come  within  the  principle  that  con- 
trolled the  determination  of  the  other  cases.  The  salary  of  the\ 
minister  to  Hayti  was  originally  fixed  at  the  sum  of  $7,500.  Neither) 
of  the  acts  appropriating  $5,000  for  his  benefit,  during  the  years  in/ 
question,  contains  any  language  to  the  effect  that  such  sum  shall  be 
"in  full  compensation"  for  those  years;  nor  was  there  in  either 
of  them  an  appropriation  of  money  "for  additional  pay,"  from 
which  it  might  be  inferred  that  Congress  intended  to  repeal  the  act 
fixing  his  annual  salary  at  $7,500.  Repeals  by  implication  are  not 
favored.  It  cannot  be  said  that  there  is  a  positive  repugnancy  be- 
tween the  old  and  the  new  statutes  in  question.  If  by  any  reason- 
able construction  they  can  be  made  to  stand  together,  our  duty  is  to 
give  effect  to  the  provisions  of  each.  Chew  Heong  v.  United  States, 
112  U.  S.  536,  549;  State  v.  Stoll,  17  Wall.  425,  430;  Ex  parte 
Yerger,  8  Wall  85,  105;  Ex  parte  Crow  Dog,  109  U.  S.  556,  570. 
The  suggestion  of  most  weight  in  support  of  the  view  that  Congress 
intended  to  reduce  the  salary  of  the  diplomatic  representative  at 
Hayti,  is  in  the  improbability,  that  that  body  would  neglect,  in  any 
year,  to  appropriate  the  full  sum  to  which  that  officer  was  entitled 
under  the  law  as  it  then  existed.  On  the  other  hand,  it  is  not  prob- 
able that  Congress,  knowing,  as  we  must  presume  it  did,  that  that 
officer  had,  in  virtue  of  a  statute — whose  object  was  to  fix  his  salary 
— received  annually  a  salary  of  $7,500  from  the  date  of  the  creation 
of  his  office,  and  after  expressly  declaring  in  the  act  of  1878,  20 
Stat.  91,  98,  that  he  should  receive  that  salary  from  and  after 


FISK  V.  JEFFEESON  POLICE  JURY,  327 

July  1,  1878,  and  again,  in  1879,  that  he  should  receive  the  same 
amount  from  and  after  July  1,  1879,  should  at  a  subsequent  date, 
make  a  permanent  reduction  of  his  salary  without  indicating  its 
purpose  to  do  so,  either  by  express  words  or  repeal,  or  by  such  pro- 
visions as  would  compel  the  courts  to  say  that  harmony  between 
the  old  and  new  statute  was  impossible.  While  the  case  is  not  free 
from  difficulty,  the  court  is  of  opinion  that,  according  to  the  settled 
rules  of  interpretation,  a  statute  fixing  the  annual  salary  of  a  public 
officer  at  a  named  sum,  without  limitation  as  to  time,  should  not  be 
deemed  abrogated  or  suspended  by  subsequent  enactments  which 
merely  appropriated  a  less  amount  for  the  services  of  that  officer 
for  particular  fiscal  years,  and  which  contained  no  words  that  ex- 
pressly or  by  clear  implication  modified  or  repealed  the  previous 
law. 

The  judgment  is  affirmed. 


FISK  V.  JEFFERSON  POLICE  JURY. 

Supreme  C<mrt  of  the  United  States.    December,  1885. 
116  U.  S.  131. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

Josiah  Fisk,  who  was  an  attorney-at-law  brought  three  suits  in 
the  proper  court  of  the  Parish  of  Jefferson  to  recover  the  salary 
and  fees  due  him  from  the  parish  as  district  attorney,  and  he  ob- 
tained judgments  in  each  case  against  the  Police  Jury,  which  is  the 
governing  body  of  the  parish. 

Being  unabla  to  obtain  the  payment  of  these  judgments  in  any 
other  mode,  he  first  made  application  for  a  writ  of  mandamus 
to  compel  the  assessment  and  collection  of  a  tax  for  the  payment  of 
two  of  these  judgments,  and  afterwards  for  another  writ  in  regard 
to  the  third  judgment ;  the  two  judgments  being  for  his  salary  and 
fees  under  one  appointment,  and  the  other  under  a  second  appoint- 
ment. 

The  inferior  court  granted  the  writ  in  one  case  and  denied  it  in 
the  other.  But,  on  appeal  to  the  Supreme  Court  of  the  State,  the 
writs  were  denied  in  both  cases. 

The  ground  of  the  jurisdiction  of  this  court  to  review  these  judg- 
ments is  the  assertion  by  plaintiff  in  error  that  they  were  founded 


328  COMPENSATION    OF   OFFICERS. 

on  a  law  of  the  state  which  impaired  the  obligation  of  his  contract, 
to  wit,  the  contract  on  which  he  procured  the  judgments  already 
mentioned. 

The  services  for  which  the  judgments  were  recovered  were  ren- 
dered in  the  year  1871,  1872,  1873  and  1874.  During  this  period 
there  was  in  force  the  act  of  the  legislature  of  1871,  of  which  Sec. 
7  is  as  follows : 

"That  no  city  or  other  municipal  corporation  shall  levy  a  tax 
for  any  purpose  which  shall  exceed  two  per  centum  on  the  assessed 
cash  value  of  all  the  property  therein  listed  for  taxation,  nor  shall 
the  police  jury  of  any  parish  levy  a  tax  for  any  parish  purpose 
during  any  year  which  shall  exceed  one  hundred  per  centum  of  the 
state  tax  for  that  year,  unless  such  tax  shall  be  first  sanctioned  by 
a  vote  of  the  majority  of  the  voters."    Acts  of  1871,  p.  109. 

But  by  the  constitution  of  the  state  of  1880  it  was  declared  that 
no  parish  or  municipal  tax,  for  all  purposes  whatsoever,  shall 
exceed  ten  mills  on  the  dollar  of  valuation.  The  Police  Jury  showed 
that  they  had  exhausted  their  power  when  the  application  for  man- 
damus was  made,  by  levying  the  full  amount  of  taxes  permissible 
under  this  constitutional  provision,  and  the  Supreme  Court  held 
that  they  could  not  be  compelled  to  levy  more. 

In  answer  to  the  argument  that,  as  applied  to  plantiff 's  case,  the 
constitutional  provision  impaired  the  obligation  of  his  contract,  the 
Supreme  Court  held  that  his  employment  as  attorney  for  the  parish 
did  not  constitute  a  contract,  either  in  reference  to  his  regular 
salary,  or  to  his  compensation  by  fees.  And  this  question  is  the 
only  one  discussed  in  the  opinion,  and  on  that  ground  the  decision 
rested. 

It  seems  to  us  that  the  Supreme  Court  confounded  two  very  dif- 
ferent things  in  their  discussion  of  this  question. 

We  do  not  assert  the  proposition  that  a  person  elected  to  an  office 
for  a  definite  term  has  any  such  contract  with  the  government  or 
with  the  appointing  body  as  to  prevent  the  legislature  or  other 
proper  authority  from  abolishing  the  oflSce  or  diminishing  its  dura- 
tion or  removing  him  from  oflSce.  So,  though  when  appointed  the 
law  has  provided  a  fixed  compensation  for  his  services,  there  is  no 
contract  which  forbids  the  legislature  or  other  proper  authority  to 
change  the  rate  of  compensation  for  salary  or  services  after  the 
change  is  made,  though  this  may  include  a  part  of  the  term  of  the 
office  then  unexpired.    Butler  v.  Pennsylvajiia,  10  How.  402. 

But,  after  the  services  have  been  rendered,  under  a  law,  resolu-  j 


PISK  V.  JEFFEESON  POLICE  JURY.  329 

tion  or  ordinance,  which  fixes  the  rate  of  compensation,  there  arises 
an  implied  contract  to  pay  for  those  services  at  that  rate.  This 
contract  is  a  completed  contract.  Its  obligation  is  perfect  and  rests ' 
on  the  remedies  which  the  law  then  gives  for  its  enforcement.  The 
vice  of  the  argument  of  the  Supreme  Court  of  Louisiana  is  in 
limiting  the  protecting  power  of  the  constitutional  provision  against 
impairing  the  obligation  of  contracts,  to  specific  agreements,  and  re- 
jecting that  much  larger  class  in  which  one  party  having  delivered 
property,  paid  money,  rendered  service,  or  suffered  loss  at  the  re- 
quest of  or  for  the  use  of  another,  the  law  completes  the  contract 
by  implying  an  obligation  on  the  part  of  the  latter  to  make  com- 
pensation. This  obligation  can  no  more  be  impaired  by  a  law  of  the 
state  than  that  arising  on  a  promissory  note. 

The  case  of  Fisk  was  of  this  character.  His  appointment  as  dis- 
trict attorney  was  lawful  and  was  a  request  madei  to  him  by  the 
proper  authority  to  render  the  services  demanded  of  that  office. 
He  did  render  these  services  for  the  parish,  and  the  obligation  of 
the  police  jury  to  pay  for  them  was  complete.  Not  only  were  the 
services  requested  and  rendered,  and  the  obligation  to  pay  for  them 
perfect,  but  the  measure  of  compensation  was  also  fixed  by  the  pre- 
vious order  of  the  police  jury.  There  was  here  wanting  no  element^ 
of  a  contract.  The  judgment  in  the  court  for  the  recovery  of  this 
compensation  concluded  all  these  questions.  Hall  v.  Wisconsin, 
103  U.  S.  5,  10 ;  Newton  v.  Commissioners,  100  U.  S.  548,  559. 

The  provision  of  the  constitution  restricting  the  limit  of  taxa- 
tion, so  far  as  it  was  in  conflict  wi^  the  act  of  1871,  and  as  applied 
to  the  contract  of  plaintiff,  impaired  its  obligation  by  destroying 
the  remedy  pro  tanto. 

It  is  apparent  that,  if  the  officers  whose  duty  it  is  to  assess  the 
taxes  of  this  parish,  were  to  perform  that  duty  as  it  is  governed 
by  the  law  of  1871,  the  plaintiff  would  get  his  money.  If  not  by  a 
first  year's  levy,  then  by  the  next.  But  the  constitutional  provi- 
sion has  repealed  that  law,  and  stands  in  the  way  of  enforcing  the 
obligation  of  plaintiff's  contract  as  that  obligation  stood  at  the 
time  the  contract  was  made. 

It  is  well  settled  that  a  provision  in  a  state  constitution  may  be  a 
law  impairing  the  obligation  of  a  contract  as  well  as  one  found 
in  an  ordinary  statute.  We  are  of  opinion,  therefore,  that,  as  it 
regards  plaintiff's  case,  this  restrictive  provision  of  the  constitu- 
tion of  1880  does  impair  the  obligation  of  a  contract.  Van  Hoffman 
V.  Quincy,  4  Wall.  535;  Nelson  v.  St.  Martin's  Parish,  111  U.  S. 
716. 


330  COMPENSATION    OP   OPPICEBS. 

The  judgments  of  the  Supreme  Court  of  Louisiana  are  reversed! 
and  the  cases  are  remanded  to  that  court  for  further  proceedings/ 
not  inconsistent  with  this  opinion. 


IV.    Assignment  op  Compensation. 
BLISS  V.  LAWRENCE. 

Court  of  Appeals  of  New  York.    October,  1874. 
58  N.  Y.  442. 

Johnson,  J.  The  controlling  question  in  these  cases  is  that  of 
the  lawfulness  of  an  assignment,  by  way  of  anticipation,  of  the 
salary  to  become  due  to  a  public  officer.  The  particular  cases  pre- 
sented are  of  assignments  of  a  month's  salary  in  advance.  But 
if  these  cases  can  be  sustained  in  law,  then  such  assignment  may 
cover  the  whole  period  of  possible  service.  In  the  particular  cases 
before  us,  the  claim  tp  a  month's  salary  seem  to  have  been  sold  at 
a  discount  of  about  ten  per  cent.  While  this  presents  no  question 
of  usury  (since  it  was  a  sale  and  not  a  loan  for  which  the  parties 
were  dealing),  it  does  present  a  quite  glaring  instance  and  example 
of  the  consequence  likely  to  follow  the  establishment  of  the  validity 
of  such  transfers,  and  thus  illustrates  one  at  least  of  the  grounds 
on  which  the  alleged  rule  of  public  policy  rests,  by  which  such 
transfers  are  forbidden.  The  public  service  is  protected  by  pro- 
tecting those  engaged  in  performing  public  duties;  and  this,  not 
upon  the  ground  of  their  private  interest,  but  upon  that  of  the  ne- 
cessity of  securing  the  efficiency  of  the  public  service,  by  seeing  to  it 
that  the  funds  provided  for  its  maintenance  should  be  received 
by  those  who  are  to  perform  the  work,  at  such  periods  as  the  law 
has  appointed  for  their  payment.  It  is  argued  that  a  public  officer 
may  better  submit  to  a  loss,  in  order  to  get  his  pay  into  his  hands 
in  advance,  than  to  deal  on  credit  for  his  necessary  expenses  This 
may  be  true  in  fact,  in  individual  instances,  and  yet  may  in  general 
not  be  in  accordance  with  the  fact.  Salaries  are,  by  law,  payable 
after  work  is  performed  and  not  before,  and  while  this  remains  the 
law,  it  must  be  presumed  to  be  a  wise  regulation,  and  necessary, 
in  the  view  of  law-makers,  to  the  efficiency  of  the  public  service. 
The  contrary  rule  would  permit  the  public  service  to  be  undermined 


BLISS  V.  LAWRENCE.  331 

by  the  assignment  to  strangers  of  all  the  funds  appropriated  to 
salaries.  It  is  true  that,  in  respect  to  officers  removable  at  will, 
this  evil  could  in  some  measure  be  limited  by  their  removal  when 
they  were  found  assigning  their  salaries ;  but  this  is  only  a  partial 
remedy,  for  there  would  still  be  no  means  of  preventing  the  con- 
tinued recurrence  of  the  same  difficulty.  If  such  assignments  are 
allowed,  then  the  assignees,  by  notice  to  the  government,  would  on 
ordinary  principles  be  entitled  to  receive  pay  directly  and  to  take 
the  place  of  their  assignors  in  respect  to  the  emoluments,  leaving 
the  duties  as  a  barren  charge  to  be  borne  by  the  assignors.  It  does 
not  need  much  reflection  or  observation  to  understand  that  such  a 
condition  of  things  could  not  fail  to  produce  results  disastrous  to 
the  efficiency  of  the  public  service. 

Some  misapprehension  as  to  the  doctrine  involved  seems  to  have 
arisen  from  the  fact  that  the  modern  adjudged  cases  have  often 
related  to  the  pay  of  half-pay  army  officers,  which  in  part  is  given 
as  a  compensation  for  past  services  and  in  part  with  a  view  to 
future  services.  Upon  a  review  of  the  English  cases,  it  will  appear 
that  the  general  proposition  is,  upon  authority,  unquestionable, 
that  salary  for  continuing  services  could  not  be  assigned;  while  a 
pension  or  compensation  for  past  services  might  be  assigned.  The 
doubt,  and  the  only  doubt,  in  the  case  of  half -pay  officers  was  as 
to  which  class  they  were  to  be  taken  to  belong.  It  was  decided  that 
inasmuch  as  their  pay  was  in  part  in  view  of  future  services,  it  was 
unassignable.  Similar  questions  have  arisen  in  respect  to  persons 
not  strictly  public  officers,  but  the  principle  before  stated  has,  in 
the  courts  of  England,  been  adhered  to  firmly. 

In  respect  to  American  authority  we  have  been  referred  to 
Brackett  v.  Blake,  7  Metcalf  335;  Mulhall  v.  Quinn,  1  Gray  105; 
and  Macomb  er  v.  Doane,  2  Allen  541,  as  conflicting  with  the  views 
we  have  expressed.  An  examination  of  these  cases  shows  that  the 
point  of  public  policy  was  not  considered  by  the  court  in  either 
of  them,  but  that  the  question  was  regarded  as  entirely  relating  to 
the  sufficiency  of  the  interest  of  the  assignor  in  the  future  salary 
to  distinguish  the  cases  from  those  of  attempted  assignments  of 
mere  expectation,  such  as  those  of  an  expectant  heir.  The  court 
held  that  in  the  cases  cited,  the  expectation  of  future  salary  being 
founded  on  existing  engagements,  was  capable  of  assignment  and 
that  the  existing  interest  sufficed  to  support  the  transfer  of  the 
future  expectation.  The  only  other  case  to  which  we  have  been 
referred  is  a  decision  of  the  Supreme  Court  of  Wisconsin. 


332  COMPENSATION    OP   OPPICEES. 

In  state  Bank  v.  Hastings,  15  Wis,  78,  the  question  being  as  to 
the  assignability  of  a  judge's  salary,  the  court  say:  "We  were 
referred  to  some  English  cases  which  hold  that  the  assignment  of 
the  pay  of  officers  in  the  public  service,  judges'  salaries,  pensions, 
etc.,  was  void  as  being  against  public  policy,  but  it  was  not  con- 
tended that  the  doctrine  of  those  cases  was  applicable  to  the  condi- 
tion of  society  or  to  the  principles  of  law  or  of  public  policy  in  this 
country.  For,  certainly,  we  can  see  no  possible  objection  to  per- 
mitting a  judge  to  assign  his  salary  before  it  becomes  due,  if  he 
can  find  any  person  willing  to  take  the  risk  of  his  living  and  being 
entitled  to  it  when  it  becomes  payable." 

We  do  not  understand  that  the  English  decisions  really  rest  on 
any  grounds  peculiar  to  that  country,  although  sometimes  expressed 
in  terms  which  we  might  not  select  to  express  our  views  of  the  true 
foundation  of  the  doctrine  in  question.  The  substance  of  it  all  is, 
the  necessity  of  maintaining  the  efficiency  of  the  public  service  by 
seeing  to  it  that  public  salaries  really  go  to  those  who  perform  the 
public  service.  To  this  extent,  we  think,  the  public  policy  of  every 
country  must  go  to  secure  the  end  in  view. 

The  judgment  must  be  affirmed. 

All  concur. 

Judgment  affirmed. 

But  accrued  salary  may  be  assigned.  Bangs  v.  Dunn,  66  Cal.  74; 
Schloss  V.  Hewlett,  81  Ala.  266. 


BUCHANAN  V.  ALEXANDER. 

Supreme  Court  of  the  United  States.    January,  1846. 

4  How.,  20.  \ 

Mr.  Justice  McLean  delivered  the  opinion  of  the  court. 

Six  writs  of  attachment  were  issued  by  a  justice  of  the  peace 
of  the  above  county  of  Norfolk,  by  boarding-house  keepers,  against 
certain  seamen  of  the  frigate  Constitution,  which  ha<l  just  returned 
from  a  cruise.  The  writs  were  laid  on  moneys  in  the  hands  of  the 
purser,  the  plaintiff  in  error,  due  to  the  seamen  for  wages.  The 
money  was  afterward  paid  to  the  seamen  by  the  purser,  in  disre- 
gard of  the  attachments,  by  the  order  of  the  Secretary  of  the  Navy. 


BUCHANAN  V.  ALEXANDER.  333 

The  purser  admitted  before  the  justice  that  the  several  sums 
attached  were  in  his  hands  due  to  the  seamen,  but  contended  he 
was  not  amenable  to  the  process.  The  justice  entered  judgment 
against  him  on  the  attachments. 

The  important  question  is  whether  the  money  in  the  hands  of 
the  purser,  though  due  to  the  seamen  for  wages,  was  attachable. 
A  purser,  it  would  seem,  cannot  in  this  respect,  be  distinguished 
from  any  other  disbursing  agent  of  the  government.  If  the  cred- 
itors of  these  seamen  may,  by  process  of  attachment,  divert  the 
public  money  from  its  legitimate  and  appropriate  object,  the  same 
thing  may  be  done  as  regards  the  pay  of  our  officers  and  men  of 
the  army  and  of  the  navy;  and  also  in  every  other  case  where  the 
public  funds  may  be  placed  in  the  hands  of  an  agent  for  disburse- 
ment. To  state  such  a  principle  is  to  refute  it.  No  government 
can  sanction  it.  At  all  times  it  would  be  found  embarrassing,  and 
under  some  circumstances  it  might  be  fatal  to  the  public  service. 

The  funds  of  the  government  are  specifically  appropriated  to 
certain  national  objects,  and  if  such  appropriations  may  be  di- 
verted and  defeated  by  State  process  or  otherwise,  the  functions 
of  the  government  may  be  suspended.  So  long  as  money  remains""! 
in  the  hands  of  a  disbursing  officer,  it  is  as  much  the  money  of) 
the  United  States,  as  if  it  had  been  drawn  from  the  treasury.  Until 
paid  over  by  the  agent  of  the  government  to  the  person  entitled  to 
it,  the  fund  cannot,  in  any  legal  sense,  be  considered  a  part  of  his 
effects.    The  purser  is  not  the  debtor  of  the  seamen. 

It  is  not  doubted  that  cases  may  have  arisen  in  which  the  govern- 
ment, as  a  matter  of  policy  or  accommodation,  may  have  aided  a 
creditor  of  one  who  received  money  for  public  services;  but  this 
cannot  have  been  under  any  supposed  legal  liability,  as  no  such 
liability  attaches  to  the  government,  or  to  its  disbursing  officers. 

We  think  the  question  in  this  case  is  clear  of  doubt,  and  requires 
no  further  illustration. 

The  judgments  are  reversed  at  the  costs  of  the  defendants,  and 
the  causes  are  remanded  to  the  State  court,  with  instructions  to 
dismiss  the  attachments  at  the  cost  of  the  appellees  in  that  court. 

The  rule  of  the  principal  case  is  applied  in  the  case  of  the  officers  of 
the  states  and  of  the  local  corporations.  Dewey  v.  Garvey,  130  Mass.  86; 
Merwin  v.  Chicago,  45  111.  133. 


884  COMPENSATION  OF  OPWCEBS. 

V.    Pensions. 

PENNIE  V.  REIS. 

Supreme  Court  of  the  United  States.    October,  1889. 
132  United  States,  464, 

The  court,  in  its  opinion,  stated  the  case  as  follows : 
This  case  comes  from  the  Supreme  Court  of  the  State  of  Cali- 
fornia. The  petitioner  is  the  administrator  of  one  Edward  A, 
Ward,  deceased,  who  was  a  police  officer  of  the  city  and  county 
of  San  Francisco  from  the  24th  of  September,  1869,  until  his  death, 
which  occurred  on  the  13th  of  March,  1889. 

On  the  1st  of  April,  1878,  an  act  of  the  legislature  of  California 
was  approved,  entitled,  **An  act  to  enable  the  Board  of  Super- 
visors of  the  city  and  county  of  San  Francisco  to  increase  the  police 
force  of  said  city  and  county,  and  provide  for  the  appointment, 
regulation  and  payment  thereof."  Statutes  of  California  of  1877, 
p.  879.  The  first  section  of  this  act  authorized  the  Board  of  Super- 
visors to  increase  the  existing  force  of  the  police,  which  consisted 
of  one  hundred  and  fifty  members,  not  exceeding  two  hundred  and 
fifty  more;  the  whole  number  not  to  make  in  all  more  than  four 
hundred;  and  provided  that  they  should  be  appointed  and  gov- 
erned in  the  same  manner  as  the  then  existing  force.  The  second 
section  declared  that  the  compensation  of  the  two  hundred  and 
fifty,  or  such  part  thereof  as  the  board  might  allow,  should  not 
exceed  $102  a  month  for  each  one,  and  that  the  compensation  of 
those  then  in  office  should  continue  at  the  rate  prescribed  by  the 
acts  under  which  they  were  appointed  until  June  1,  1879,  when 
their  pay  should  be  fixed  by  a  board  of  commissioners  created 
under  the  act ;  that  the  police  officers  then  in  office  should  be  known 
as  the  *  *  old  police, ' '  and  those  appointed  under  the  act  as  the  *  *  new 
police;"  and  that  the  officers  subsequently  appointed  to  fill  vacan- 
cies on  the  old  police  should  receive  the  same  pay  as  the  new  police, 
subject  to  the  condition  that  the  treasurer  of  said  city  and  county 
should  "retain  from  the  pay  of  each  police  officer  the  sum  of  two 
dollars  per  month,  to  be  paid  into  a  fund  to  be  known  as  the  '  police 
life  and  health  insurance  fund,'  "  to  be  administered  as  provided 
in  the  act.  The  mayor,  auditor  and  treasurer  of  the  city  and  county 
of  San  Francisco  were  constituted  a  board  to  be  known  as  the 
** police,  life  and  health  insurance  board,"  and  required  from  time 
to  time  to  invest,  as  it  might  deem  best,  the  moneys  of  the  police 


PENNIE  V.  REIS.  335 

life  and  health  insurance  fund  in  various  designated  securities,  to 
be  held  by  the  treasurer,  subject  to  the  order  of  the  board.  The 
act  declared  that  upon  the  death  of  any  member  of  the  police  force, 
after  the  first  day  of  June,  1878,  there  should  be  paid,  by  the  treas- 
urer, out  of  the  said  life  and  health  insurance  fund,  to  his  legal 
representative,  the  sum  of  one  thousand  dollars;  that  in  case  any 
officer  should  resign  from  bad  health  or  bodily  infirmity,  there  should 
be  paid  to  him,  from  that  fund,  the  amount  of  the  principal  which 
he  may  have  contributed  thereto ;  and  that,  in  case  such  fund  should 
not  be  sufficient  to  pay  the  demand  upon  it,  such  demand  should 
be  registered  and  paid  in  the  order  of  its  registry,  out  of  the  funds 
as  received.  Ward  having  been  a  police  officer  whilst  this  act  was 
in  force,  the  administrator  of  his  estate  demanded  of  the  treasurer 
the  one  thousand  dollars  provided  by  it.  There  was  in  the  treasury 
at  the  time  the  sum  of  forty  thousand  dollars.  The  treasurer  hav- 
ing refused  to  pay  the  demand,  the  administrator  applied  to  the 
Supreme  Court  for  a  writ  of  mandate  upon  him  to  compel  its  pay- 
ment. To  the  petition  for  that  writ  the  treasurer  demurred  on  the 
ground  that  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action;  or  entitle  the  petitioner  to  the  writ  of  mandate,  or  to 
any  relief  whatever;  and  that  the  act  of  the  legislature,  passed 
March  4,  1889,  entitled  **An  act  to  create  a  Police  Relief  Health 
and  Life  Insurance  and  Pension  Fund  in  the  several  counties,  cit- 
ies and  counties,  cities  and  towns  of  the  State,"  was  a  valid  and 
constitutional  enactment.  Statutes  of  California,  1889,  p.  56.  This 
act  creates  a  board  of  trustees  of  the  police  relief  and  pension  fund 
of  the  police  department  in  each  county,  city  and  county,  city  or 
town,  to  be  known  as  the  board  of  police  pension  fund  commission- 
ers; and  provides  for  its  organization  and  the  administration  of 
the  fund,  and  for  pensions  to  officers  over  sixty  years  of  age,  who 
have  been  in  the  service  over  twenty  years,  to  those  who  have  become 
physically  disabled  in  the  performance  of  their  duties,  and  to  the 
widows  and  children  of  those  who  lose  their  lives  in  the  discharge 
of  their  duties,  and  for  the  payment  of  certain  sums  of  money  to 
the  widows  or  children  of  those  who  die  from  natural  causes  after 
ten  and  less  than  twenty  years'  service,  and  regulates  the  evidence 
of  disability ;  and  that  retired  officers  shall  report  to  the  chief  of 
police  at  certain  stated  periods,  and  perform  duty  under  certain 
circumstances,  and  for  the  forfeiture  of  pensions  by  misconduct, 
and  for  the  meetings  of  the  board,  and  prescribes  their  duties  as 
to  the  fund. 

Sections  12  and  13  of  the  act  are  as  follows : 


336  COMPENSATION  OP  OFFICERS. 

Sec.  12,  The  Board  of  Supervisors,  or  other  governing  author- 
ity, of  any  county,  city  and  county,  city  or  town  shall,  for  the  pur- 
poses of  said  'Police  Relief  and  Pension  Fund*  hereinbefore  men- 
tioned, direct  the  payment  annually,  and  when  the  tax  levy  is 
made,  into  said  fund  of  the  following  moneys: 

"Ninth.  The  treasurer  of  any  county,  city  and  county,  city  or 
town  shall  retain  from  the  pay  of  each  member  of  police  depart- 
ment the  sum  of  two  dollars  per  month,  to  be  forthwith  paid  into 
said  police  relief  and  pension  fund,  and  no  other  or  further  reten- 
tion or  deduction  shall  be  made  from  such  pay  for  any  other  fund 
or  purpose  whatever. 

"Sec.  13.  Any  Police,  Life,  and  Health  Insurance  Fund,  or  any 
fund  provided  by  law,  heretofore  existing  in  any  county,  city  and 
county,  city  or  town,  for  the  relief  or  pensioning  of  police  officers,  or 
their  life  or  health  insurance,  or  for  the  pajonent  of  a  sum  of  money 
on  their  death,  shall  be  merged  with,  paid  into,  and  constitute  a 
part  of  the  fund  created  under  the  provisions  of  this  act ;  and  no 
person  who  has  resigned  or  been  dismissed  from  said  police  de- 
partment shall  be  entitled  to  any  relief  from  such  fund :  Provided, 
That  any  person  who,  within  one  year  prior  to  the  passage  of  this 
act,  has  been  dismissed  from  the  police  department  for  incompe- 
tency or  inefficiency,  and  which  incompetency  or  inefficiency  was 
caused  solely  by  sickness  or  disability  contracted  or  suffered  while 
in  service  as  a  member  thereof,  and  who  has,  prior  to  said  dismissal, 
served  for  twelve  or  more  years  as  such  member,  shall  be  entitled 
to  all  the  benefits  of  this  act." 

The  act  also  repealed  all  acts  or  parts  of  acts  in  conflict  with  its 
provisions.  Under  this  act  the  treasurer  refused  to  pay  the  money 
demanded  by  the  administrator  of  Ward.  The  Supreme  Court  of 
the  State  held  that  this  latter  act  was  a  valid  law,  and  that  it  re- 
pealed the  former  act,  and  denied  the  prayer  of  the  petitioner  and 
dismissed  the  writ. 

From  that  judgment  the  administrator  has  brought  the  case  to 
this  court  on  a  writ  of  error. 

Mr.  Justice  Field,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

It  was  contended  in  the  court  below  that  this  latter  act  of  March 
4,  1889,  violated  that  provision  of  the  Constitution  of  the  United    ; 
States,  and  of  the  State,  which  declares  that  no  person  shall  be  / 
deprived  of  his  property  without  due  process  of  law.    The  Supreme  / 
Court  of  the  State  held  that  this  contention  went  on  the  theory/ 
that  the  deceased  police  officer  had,  at  the  time  of  his  death,  a  vested/ 


PENNIE  V.  REIS.  337 

property  right  in  the  one  thousand  dollars  of  public  money  which 
the  former  statute  had  directed  to  be  paid  to  his  legal  representa- 
tive upon  his  death.  The  petitioner  now  insists  that  this  state- 
ment of  his  contention  below  is  erroneous;  that  he  did  not  then 
contend  and  does  not  now  contend  that  the  fund  in  the  hands  of 
the  treasurer  was  public  money,  but  private  money  accumulated 
from  the  contributions  of  the  members  of  the  police  force,  and  that 
by  Ward's  contribution  the  sum  claimed  became,  on  his  death, — 
like  money  due  on  a  life  insurance  policy — property  of  his  estate. 
Such,  at  least,  is  his  position,  if  we  rightly  understand  it.  Some 
plausibility  is  given  to  it  by  the  language  of  the  petition  to  which 
the  treasurer  demurred.  The  petition  alleges  that  Ward,  the  de- 
ceased, contributed,  out  of  his  salary  as  a  police  officer,  to  the  police* 
life  and  health  insurance  fund,  the  sum  of  two  dollars  per  month 
for  each  month  from  April  1,  1878,  to  and  including  the  month  of 
March,  1889,  and  that  the  whole  amount  of  his  contribution  to 
that  fund  was  $264;  that,  upon  his  death,  there  was  due  to  the 
petitioner,  as  the  legal  representative  of  Ward,  the  sum  of  one 
thousand  dollars,  payable  out  of  that  fund;  that  it  was  the  duty 
of  the  treasurer  of  that  fund  to  pay  it ;  and  that  there  was  in  his 
possession,  at  the  time,  forty  thousand  dollars  applicable  to  its 
payment. 

The  petitioner  now  contends  that  these  several  allegations  are 
to  be  taken  as  literally  true,  from  the  fact  that  the  treasurer  de- 
murred to  the  petition.  But  a  demurrer,  admits  only  allegations  of 
fact  and  not  conclusions  of  law.  When  therefore  a  plaintiff  relies 
for  recovery  upon  compliance  with  the  provisions  of  a  statute,  and 
attempts  to  set  forth  conformity  with  them,  the  court  will  look  to 
that  statute  and  take  the  allegations  as  intended  to  meet  its  provi- 
sions, notwithstanding  the  inaccuracy  of  any  statement  respecting 
them.  If  the  pleading  misstates  the  effect  and  purpose  of  the 
statute  upon  which  the  party  relies,  the  adverse  party,  in  demur- 
ring to  such  pleading,  does  not  admit  the  correctness  of  the  con- 
struction, or  that  the  statute  imposes  the  obligations  or  confers 
the  rights  which  the  party  alleges.  Dillon  v.  Barnard,  21  Wall, 
430,  437.  Notwithstanding,  therefore,  in  this  case,  the  petitioner 
avers  that  the  deceased  police  officer  contributed  out  of  his  salary 
two  dollars  a  month,  pursuant  to  the  law  in  question,  and,  in  sub- 
stance, that  the  fund  which  was  to  pay  the  one  thousand  dollars 
claimed  was  created  out  of  like  contributions  of  the  members  of 
the  police,  the  court,  looking  to  the  statute,  sees  that,  in  point  of 
fact,  no  money  was  contributed  by  the  police  officer  out  of  his  sal- 


338  COMPENSATION  OP  OFFICEBS. 

ary,  but  that  the  money  which  went  into  that  fund  under  the  act 
of  April  1,  1878,  was  money  from  the  State  retained  in  its  posses- 
sion for  the  creation  of  this  very  fund,  the  balance — one  hundred 
dollars — being  the  only  compensation  paid  to  the  police  officer. 
Though  called  part  of  the  officer's  compensation,  he  never  received 
it  or  controlled  it,  nor  could  he  prevent  its  appropriation  to  the 
fund  in  question.  He  had  no  such  power  of  disposition  over  it  as 
always  accompanies  ownership  of  property.  The  statute,  in  legal 
effect,  says  that  the  police  officer  shall  receive  9s  compensation, 
each  month,  not  exceeding  one  hundred  dollars,  or  such  sum  as  may 
be  fixed  after  June  1,  1879,  by  a  board  of  commissioners  created 
under  the  act,  and  that,  in  addition  thereto,  the  State  will  create  a 
fund  by  appropriating  two  dollars  each  month  for  that  purpose, 
from  which,  upon  his  resignation  for  bad  health  or  bodily  infirmity, 
or  dismissal  for  mere  incompetency  not  coupled  with  any  offence 
against  the  laws  of  the  State,  a  certain  sum  shall  be  paid  to  him, 
and  upon  his  death  a  certain  sum  shall  go  to  his  legal  representa- 
tive. 

Being  a  fund  raised  in  that  way,  it  was  entirely  at  the  disposal 
of  the  government,  until,  by  the  happening  of  one  of  the  events 
stated — ^the  resignation,  dismissal,  or  death  of  the  officer — the  right 
to  the  specific  sum  promised  became  vested  in  the  officer  or  his  rep- 
resentative. It  requires  no  argument  or  citation  of  authorities  to 
show,  that  in  making  a  disposition  of  a  fund  of  that  character, 
previous  to  the  happening  of  one  of  the  events  mentioned,  the  State 
impaired  no  absolute  right  of  property  in  the  police  officer.  The 
direction  of  the  State,  that  the  fund  should  be  one  for  the  benefit 
of  the  police  officer  or  his  representative,  under  certain  conditions, 
was  subject  to  change  or  revocation  at  any  time,  at  the  will  of  the 
legislature.  There  was  no  contract  on  the  part  of  the  State  that  its 
disposition  should  always  continue  as  originally  provided.  Until 
the  particular  event  should  happen  upon  which  the  money  or  a 
part  of  it  was  to  be  paid,  there  was  no  vested  right  in  the  officer 
to  such  payment.  His  interest  in  the  fund  was,  until  then,  a  mere 
expectancy  created  by  the  law,  and  liable  to  be  revoked  or  destroyed 
by  the  same  authority.  The  law  of  April  1,  1878,  having  been  re- 
pealed before  the  death  of  the  intestate,  his  expectancy  became 
impossible  of  realization ;  the  money  which  was  to  pay  the  amount 
claimed  had  been  previously  transferred  and  mingled  with  another 
fund,  and  was  no  longer  subject  to  the  provisions  of  that  act.  Such 
being  the  nature  of  the  intestate 's  interest  in  the  fund  provided  by 


COMMONWEALTH  V.  WALTON.  339 

the  law  of  1878,  there  was  no  right  of  property  in  him  of  which  he 
or  his  representative  has  been  deprived. 

If  the  two  dollars  a  month,  retained  out  of  the  alleged  compen- 
sation of  the  police  officer,  had  been  in  fact  paid  to  him,  and  thus 
become  subject  to  his  absolute  control,  and  after  such  payment  he 
had  been  induced  to  contribute  it  each  month  to  a  fund  on  condi- 
tion that,  upon  his  death,  a  thousand  dollars  should  be  paid  out  of 
it,  to  his  representative,  a  different  question  would  have  been  raised, 
with  respect  to  the  disposition  of  the  fund,  or  at  least  of  the  amount 
of  the  decedent's  contribution  to  it.    Upon  such  a  question  we  are 
not  required  to  express  any  opinion.    It  is  sufficient  that  the  two\ 
dollars  retained  from  the  police  officer  each  month,  though  called 
in  the  law  a  part  of  his  compensation,  were,  in  fact,  an  appropria-l 
tion  of  that  amount  by  the  State  each  month  to  the  creation  of  a\ 
fund  for  the  benefit  of  the  police  officers  named  in  that  law,  and,  I 
until  used  for  the  purposes  designed,  could  be  transferred  to  other/ 
parties  and  applied  to  different  purposes  by  the  legislature. 

Judgment  affirmed. 


COMMONWEALTH  V.  WALTON. 

Supreme  Court  of  Pennsylvania.    January,  1897. 
182  Pennsylvania  State,  373. 

Opinion  of  Mr.  Chief  Justice  Sterrett,  Oct.  11,  1897 :  , 

In  the  relator's  petition  for  the  alternative  writ,  it  avers  among 
other  things  that  it  is  a  corporation,  created  by  and  existing  under 
the  laws  of  this  state,  whose  objects  as  defined  by  its  charter  are  to 
accumulate  a  fund  from  the  dues  of  its  members,  from  legacies, 
bequests,  gifts  and  other  sources,  with  which  to  pay  pensions  to 
members  of  the  association  and  to  families  of  deceased  members; 
that  its  membership  is  twenty-three  hundred  and  eighty-six  (2386), 
including  the  director  of  public  safety,  the  superintendent  of  police, 
all  the  police  captains  and  lieutenants,  two  hundred  and  thirty-six 
(236)  sergeants,  two  thousand  and  thirteen  (2013)  patrolmen,  six- 
ty-seven (67)  patrol  and  van  drivers  and  thirty  (30)  employees 
of  the  electric  bureau ;  that  it  pays  pensions  to  members  who  have 
become  permanently  incapacitated  by  reason  of  injuries  received 
in  the  performance  of  actual  duty,  to  members  who  have  served 


840  COMPENSATION  OP  OFFICERS. 

fifteen  years,  whatever  may  be  the  cause  of  incapacity  (excepting 
cases  in  which  it  results  from  the  member's  own  vicious  habits), 
to  members  who  have  served  twenty-five  years,  and  to  the  widow 
or  children  or  dependent  parents  of  a  member  killed  in  the  dis- 
charge of  his  duty,  etc. ;  that  in  1895  an  ordinance  was  passed  by 
the  councils  of  said  city  of  Philadelphia  and  approved  by  the  mayor 
appropriating  ten  thousand  ($10,000)  dollars  for  the  charter  pur- 
poses of  said  Pension  Fund  Association;  that  in  January  of  that 
year  a  warrant  for  the  payment  of  said  sum  was  duly  drawn  by  the 
director  of  the  department  of  public  safety  and  presented  to  the 
then  city  controller,  who  refused  to  countersign  the  same ;  that  his 
successor  in  office, — ^the  present  controller, — ^being  unwilling  to 
overrule  the  decision  of  his  predecessor,  declined  to  countersign 
the  warrant ;  and  praying  that  an  alternative  mandamus  issue,  etc. 

In  the  city  controller 's  return  to  the  alternative  writ  all  the  facts 
recited  in  the  petition  are  virtually  admitted.  The  only  reason  he 
gives  for  his  refusal  to  countersign  the  warrant  is  that  the  appropri- 
ation was  to  an  association  or  corporation;  and  is  in  violation  of 
law  and  of  section  7  of  article  IX,  of  the  constitution,  which  reads 
thus:  **The  general  assembly  shall  not  authorize  any  county,  city, 
borough,  township  or  unincorporated  district  to  become  a  stock- 
holder in  any  company,  association  or  corporation,  or  to  obtain  or 
appropriate  money  for  or  to  loan  its  credit  to  any  corporation,  asso- 
ciation, institution  or  individual. ' ' 

In  support  of  the  demurrer  to  this  return  the  following  reasons 
were  assigned:  (1)  the  return  admits  facts  which  show  that  the 
relator  is  entitled  to  relief;  (2)  it  discloses  no  legal  ground  for 
refusal  to  countersign  the  warrant,  and  (3)  the  respondent  has 
neither  set  up  nor  offered  any  matter  or  thing  to  defeat  the  right 
of  the  relator  as  disclosed  by  its  petition. 

The  refusal  of  the  court  below  to  sustain  the  demurrer,  and  the 
entry  of  judgment  thereon  for  the  defendant,  constitute  the  sub- 
jects of  complaint  in  this  appeal. 

It  is  unnecessary  to  even  outline  the  history  of  the  constitutional 
prohibition  above  quoted. 

It  is  evident  from  an  examination  of  our  cases  on  the  subject 
that  no  strictly  legitimate  municipal  purpose  was  intended  to  be 
prohibited.  The  evident  purpose  of  the  prohibition  was  to  confine 
municipalities  to  the  objects  for  which  they  were  created  and  to 
restrain  the  legislature  from  authorizing  any  perversion  of  them. 
By  the  act  of  March  17,  1789,  which  appears  to  be  still  in  force,  the 
city  councils  of  Philadelphia  "have  full  power  and  authority  to 


COMMONWEALTH  V.  WALTON.  341 

make,  ordain  and  establish  such  and  so  many  laws,  ordinances  and 
regulations  as  shall  be  necessary  for  the  welfare  and  comfort  of  the 
city."  We  have  no  right  to  assume,  nor  is  there  anything  from 
which  it  may  be  fairly  inferred  that  the  constitutional  prohibition 
in  question  was  intended  to  revoke  or  curtail  any  of  the  powers  or 
authorities  with  which  the  city  councils  were  theretofore  invested  by 
the  comprehensive  grant  above  quoted.  It  is  not  even  suggested 
that  a  reasonable  appropriation  by  councils  for  the  creation  or 
maintenance  of  a  police  pension  fund  is  not  an  appropriation  to 
a  strictly  municipal  use,  and  "necessary  for  the  welfare  and  com- 
fort of  the  city."  A  judiciously  administered  pension  fund  is 
doubtless  a  potent  agency  in  securing  and  retaining  the  services  of 
the  most  faithful  and  efficient  class  of  men  connected  with  that 
arm  of  the  municipal  service  in  which  every  property  owner  and 
resident  of  the  city  is  most  vitally  interested.  Reasons  in  support 
of  this  proposition  need  not  be  stated  in  detail.  They  are  such  as 
readily  suggest  themselves  toi  every  reflecting  mind. 

There  is  no  merit  in  the  objection  that  councils  delegated  the 
distribution  of  the  sum  appropriated  to  the  "Philadelphia  Police 
Pension  Fund  Association,"  instead  of  distributing  it  themselves. 
If  they  were  satisfied,  as  they  doubtless  were,  that  the  distribution 
of  the  fund  would  be  better  effected  through  the  agency  of  the 
association  than  by  an  agency  of  their  own  creation,  they  had  a 
right  to  so  provide.  As  we  have  seen,  the  association  was  incorpo- 
rated for  the  express  purpose  of  administering  such  funds  on  just 
and  equitable  principles.  If  it  should  attempt  to  divert  any  of  the 
funds  to  improper  purposes  ample  redress  could  be  had  by  applica- 
tion to  the  proper  court. 

It  follows  from  what  has  been  said  that  the  demurrer  should 
have  been  sustained,  and  a  peremptory  writ  awarded  as  prayed  for. 

Judgment  reversed,  and  judgment  is  now  entered  in  favor  of  \ 
the  plaintiff  on  the  demurrer,  and  peremptory  writ  awarded  as  ' 
prayed  for. 


342  COMPENSATION  OP  OPPICBBS. 

IN  THE  MATTER  OF  THE  APPLICATION  OF  CATHA- 
RINE F.  MAHON,  APPELLANT,  FOR  A  WRIT  OF  MANDA- 
MUS  AGAINST  THE  BOARD  OF  EDUCATION  OF  THE  CITY 
OF  NEW  YORK,  RESPONDENT. 

Court  of  Appeals  of  New  York.    May,  1902. 
171  New  York,  263. 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  February  12,  1902, 
which  reversed  an  order  of  Special  Term  granting  a  motion  for  a 
peremptory  writ  of  mandamus  directing  the  defendant  to  place  the 
name  of  the  relator  on  the  list  of  retired  teachers  entitled  to  receive 
as  an  annuity  one-half  of  salary  paid  her  before  retirement,  and  dis- 
missed the  proceeding. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

CuLi,EN,  J.  By  chapter  296  of  the  Laws  of  1894  there  was 
enacted  a  provision  for  retiring  and  pensioning  on  half  pay  male 
teachers  in  the  city  of  New  York  who  had  served  thirty-five  years, 
and  female  teachers  in  that  city  who  had  served  for  thirty  years. 
The  fund  for  the  payment  of  these  pensions  was  to  consist  of  fines 
and  deductions  from  teachers'  wages  made  for  any  cause  and  from 
donations  and  legacies  that  might  be  made  to  it.  Chapter  91  of 
the  Laws  of  1898  added  to  the  fund  five  per  cent  of  the  excise 
money  or  license  fee  belonging  to  the  city  of  New  York.  The  re- 
lator had  been  a  teacher  in  a  public  school  in  the  city  of  New  York, 
from  which  position  she  retired  in  September,  1892.  In  1900  an 
act  was  passed  (Chap.  725,  laws  of  that  year)  by  which  the  board 
of  education  of  the  city  was  directed  to  place  the  relator  and  thirty- 
two  other  teachers,  who  had  also  been  retired  before  the  establish- 
ment of  the  pension  system,  on  the  list  of  retired  teachers  entitled 
to  receive  as  annuities  one-half  the  salaries  paid  to  them  while  in 
service,  and  to  pay  to  them  such  annuities  from  the  time  of  their 
respective  retirements  not  earlier  than  the  enactment  of  the  statute 
of  1894.  The  respondent  having  declined  to  place  the  relator's 
name  on  the  list,  this  proceeding  was  instituted  to  compel  it  to  take 
such  action. 

We  agree  with  the  learned  Appellate  Division  that  the  statute  of 
1900  is  unconstitutional  and  approve  the  able  opinion  delivered  by 
that  learned  court.  That  the  excise  money  appropriated  to  the 
pension  fund  is  public  money  is  plain.  {People  ex  rel.  Einsfeld  v. 
Murray,  149  N.  Y.  367 ;  Fox  v.  Mohawk  &  H.  R.  Humane  Society, 


APPLICATION    OF    CATHARINE    F.    MAHON.  343 

165  N.  Y.  517.)  I  think  it  is  equally  plain  that  the  proceeds  of 
the  fines  and  deductions  from  teachers'  wages  are  also  public 
moneys.  {Pennie  v.  Beis,  132  IT.  S.  464.)  They  certainly  were  the 
moneys  of  the  city  of  New  York  before  they  were  appropriated  to 
the  payment  of  teachers'  wages,  and  when  that  appropriation  failed 
because  through  misconduct  or  absence  the  teachers  were  no  longer 
entitled  to  receive  them,  they  necessarily  remained  the  property 
of  the  city.  I  do  not  see,  however,  how  a  contrary  view  would  help 
the  relator.  If  they  are  to  be  regarded  as  belonging  to  the  teachers 
the  legislature  could  not  alter  the  purpose  towards  which  they  were 
originally  devoted.  Being  the  moneys  of  the  city  of  New  York, 
the  question  is  presented  whether  the  legislature  could  lawfully 
appropriate  them  for  pensions  to  pei^»s  who  had  been  employees 
of  the  city  at  a  time  when  no  pension  system  was  provided  by  law. 
"We  think  not.  Iq  Town  of  Guilford  v.  Supervisors  of  Chenango 
County  (13  N.  Y.  143)  the  broad  doct^ne-was  laid  down  that  ''The 
legislature  is  not  confined  in  its  appropriation  of  the  public  moneys, 
or  of  the  sums  to  be  raised  by  taxation  in  favor  of  individuals,  to 
cases  in  which  a  legal  demand  exists  against  the  state.  It  can  thus 
recognize  claims  founded  in  equity  and  justice  in  the  largest  sense 
of  these  terms,  or  in  gratitude  or  charity.  Independent  of  express 
constitutional  restrictions,  it  can  make  appropriations  of  money 
whenever  the  public  well  being  requires  or  will  be  promoted  by  it, 
and  it  is  the  judge  of  what  is  for  the  public  good. ' '  This  remained 
the  law  till  1875,  when  the  people  thought  it  necessary  to  impose 
restrictions,  which  was  done  by  the  constitutional  amendments 
adopted  in  that  year.  Section  10  of  article  8  provides  that  "No 
county,  city,  town  or  village  shall  hereafter  give  any  money  or 
property,  or  loan  its  money  or  credit  to  or  in  aid  of  any  individual, 
association  or  corporation, ' '  and  section  8  of  article  3,  '  *  The  legisla- 
ture shall  not,  nor  shall  the  common  council  of  any  city,  nor  any 
board  of  supervisors,  grant  any  extra  compensation  to  any  public 
officer,  servant,  agent  or  contractor."  These  amendments  elimi- 
nated all  considerations  of  gratitude  and  charity  as  grounds  for 
the  appropriation  of  public  moneys,  except  so  far  as  by  article  8 
it  is  provided  that  these  restrictions  shall  not  prevent  the  municipal- 
ities named  from  making  such  provision  for  the  aid  and  support 
of  their  poor  as  may  be  authorized  by  law.  The  claim  of  the  re- 
lator falls  in  direct  terms  within  the  restrictions  of  section  28  of 
article  3.  The  relator  was  a  public  servant  or  employee  of  the  city 
and  the  legislature  has  sought  to  grant  her  extra  compensation. 
The  argument  of  her  counsel  only  emphasizes  the  conflict  between 


844  COMPENSATION  OP  OFFICERS. 

the  statute  and  the  Constitution.  He  contends:  "The  act  of  1900 
is  as  though  the  State  said  to  the  worn-out  and  decrepit  teachers, 
'You  have  not  been  paid  enough  for  your  services,  and  we  will  pay 
you  what  you  deserve, '  "  It  is  exactly  such  action  on  the  part  of 
the  legislature  that  the  constitutional  amendment  was  intended 
to  prevent.  Extra  compensation  is  compensation  over  and  above 
that  fixed  by  contract  or  by  law  when  the  services  were  rendered. 
No  one  would  assert  that  as  between  private  individuals  there  arises 
any  equitable  or  moral  obligation  to  pay  for  services  more  than  the 
stipulated  compensation,  where  no  services  have  been  rendered  ad- 
ditional to  those  contemplated  by  the  contract.  There  was  no  moral 
obligation  on  the  city  of  New  York  to  establish  a  pension  system  in 
favor  of  teachers.  Most  of  the  servants  of  the  State  and  most  of 
the  teachers  in  the  public  schools  enjoy  no  right  to  be  pensioned  for 
services.  The  question  of  establishing  a  system  of  pensions  is  one 
of  policy,  not  of  obligation.  The  legislature  might  well  think  that 
in  a  large  city  where  teaching  is  adopted  as  a  calling  to  be  pursued 
for  years,  and  often  for  life,  it  would  be  wise  to  provide  a  system 
of  pensions  as  an  inducement  both  to  service  at  low  wages  and  also 
to  good  conduct  in  service.  But  these  considerations  have  no  appli-J 
cation  to  the  case  of  officers  or  employees  who  are  not  in  service  at ' 
the  time  the  pension  system  is  established  or  in  force.  As  to  such 
persons  the  grant  of  a  pension  is  a  mere  gratuity. 

Parker,  Ch.  J,,  Gray,  0  'Brien,  Bartlett,  Haight  and  Werner, 

JJ.,  concur. 

Order  affirmed. 


STATE  V.  ROGERS. 


Supreme  Court  of  Minnesota.    July,  1902. 
87  Minnesota,  130. 

Lewis,  'J.  Action  by  relator  to  obtain  a  writ  of  Mandamus  re- 
quiring respondent,  as  comptroller  of  the  city  of  Minneapolis,  to 
sign  a  warrant  drawn  by  the  board  of  education  upon  the  city 
treasurer  for  the  sum  of  $608.37,  in  favor  of  John  A.  Schlener,  as 
trustee  of  the  so-called  "Teachers'  Retirement  Fund."  The  amount 
of  the  warrant  represents  one  per  cent,  of  the  salaries  of  all  the 
teachers  employed  in  the  public  schools  in  Minneapolis  for  the 


STATE  V.  ROGERS.  345 

month  of  November,  1901.  An  alternative  writ  was  issued  by  the 
court  below  requiring  respondent  to  show  cause  why  he  should  not 
sign  the  warrant.  Upon  the  return  day  respondent  moved  to  quash 
the  alternative  writ.  The  motion  was  granted,  and  relator  ap- 
pealed from  the  judgment  entered  thereon. 

The  petition  alleged  that  on  May  28,  1901,  the  relator  entered 
into  a  written  contract  of  employment  with  the  board  of  educatioi| 
of  Minneapolis  to  teach  during  the  school  year  of  1901-1902,  at  ^ 
salary  of  $135  per  month,  and  the  contract  of  employment  con- 
tained the  following  clause: 

*  *  It  is  agreed  that  the  board  may  deduct  monthly  from  your  sal- 
ary one  per  cent,  thereof,  which,  with  other  funds  that  may  be  con- 
tributed for  the  same  purpose,  shall  create  a  permanent  teachers' 
retirement  fund,  which  shall  be  held  invested,  distributed,  and 
paid  out  only  according  to  rules  and  regulations  of  the  board  of 
education  respecting  such  fund. ' ' 

The  rules  and  regulations  referred  to  in  this  contract  are  too 
long  to  be  inserted  in  full  in  this  opinion,  but  the  most  important 
sections  requiring  consideration  may  be  abbreviated  as  follows : 

Section  124:  From  and  after  July  1,  1900,  there  shall  be  de- 
ducted from  the  salaries  of  all  teachers  regularly  in  the  employ  of 
the  board,  monthly,  one  per  cent,  thereof,  which  sum  so  deducted 
shall  constitute  a  teachers '  retirement  fund,  which  shall  be  held,  in- 
vested, and  distributed  in  the  manner  and  for  the  benefit  of  the 
persons  prescribed  by  these  rules  and  regulations.  Such  fund 
shall  be  divided  into  a  permanent  fund  and  an  annuity  fund.  The 
first  $20,000  shall  be  accumulated  with  one-fourth  of  the  increase 
therefrom,  and  shall  constitute  a  permanent  fund,  no  part  of  which 
shall  be  used  to  pay  any  annuity  or  expense.  The  remainder  of 
the  retirement  fund,  including  the  other  three-fourths  of  the  income 
from  the  permanent  fund,  shall  constitute  the  annuity  fund,  out  of 
which  all  annuities  and  expenses  shall  be  paid. 

.  .  .  .  The  benefieiaries  of  the  fund  are  as  set  forth  in  sec- 
tion 130: 

''Teachers  who  shall  have  taught  in  the  Minneapolis  public 
schools  for  a  period  aggregating  twenty  years  or  more  of  actual 
service,  and  who,  subsequent  to  the  first  day  of  July,  1900,  either 
at  their  own  request,  or  on  motion  of  the  board  of  education,  shall 
be  or  shall  have  been  retired  by  the  board  of  education  from  serv- 
ice therein  on  account  of  age  or  mental  or  physical  disability,  shall, 
from  and  after  such  retirement  and  until  his  or  her  death,  receive, 


346  COMPENSATION  OP  OPPICERS. 

quarterly,  in  equal  installments,  out  of  said  annuity  fund,  the  fol- 
lowing annuities  respectively,  to-wit:  (1)  Teachers  who  shall  havel 
so  taught  for  a  period  aggregating  twenty  years,  and  not  exceedingl 
twenty-five  years,  shall  each  receive  an  annuity  not  exceeding  $200  \ 
each,  per  year.    (2)  Teachers  who  shall  have  so  taught  for  a  period 
aggregating  twenty-five  and  not  exceeding  thirty  years,  shall  each  \ 
receive  an  annuity  of  not  exceeding  $225  each,  per  year.     (3) 
Teachers  who  shall  have  taught  for  a  period  aggregating  thirty 
years  or  more,  shall  each  receive  an  annuity  of  $250  each,  per 
year. ' ' 

Then  follow  certain  provisos,  and  section  131,  which  reads: 
"If  any  teacher  shall  be  retired  by  the  board  of  educatior  after    \ 
fifteen  and  before  twenty  years'  service  in  the  public  schools  of 
Minneapolis  for  any  of  the  causes  aforesaid,  such  teacher  upon  re-    j 
tirement  shall  receive  back  the  sums  so  deducted  from  his  or  her^ 
salary. ' ' 

Upon  the  part  of  appellant  it  has  been  argued  that  the  clause  in 
the  contract  with  the  board  of  education  permitting  a  deduction  of 
one  per  cent,  of  the  salaries  affects  merely  the  mode  of  payment  of 
that  percentage  of  the  salaries,  and  is  equivalent  to  an  assignment 
by  the  teachers  of  that  portion  of  their  salaries  to  the  trustee  fund, 
and  that  the  payment  of  such  percentage  of  the  salaries  into  the 
trustee  fund  is  incident  to  and  within  the  power  of  the  board  of 
education.  Upon  the  other  hand,  it  is  contended  by  respondent 
that  the  board  of  education  possessed  no  authority  to  make  the 
contracts  referred  to,  and  that  its  act  in  passing  the  resolutions 
and  regulations,  as  well  as  in  exacting  the  contract  from  the  teach- 
ers, was  ultra  vires  and  void ;  also  that  the  one  per  cent,  of  the  sal- 
aries thus  diverted  and  paid  into  the  trustee  fund,  was  a  part  of 
the  public  moneys  of  the  district,  and  the  act  of  the  board  in  di- 
verting it  from  its  legitimate  channel  was  ultra  vires. 

We  must  first  consider  the  authority  with  which  the  board  of 
education  is  vested.  The  powers  of  the  board  are  found  embraced 
within  the  following  laws:  Sp.  Laws  1878,  c.  157,  as  amended  by 
the  following  acts,  to-wit:  Sp.  Laws  1879,  c.  62;  Sp.  Laws  1881,  c, 
114;  Sp.  Laws  1881  (Ex.  Sess.),  cc.  49,  52;  Sp.  Laws  1883,  c.  233; 
Sp.  Laws  1885,  cc.  86,  97 ;  Sp.  Laws  1887,  c.  22.  The  pertinent 
part  of  the  law  reads  as  follows : 

* '  It  shall  have  the  entire  control  and  management  of  all  common 
schools  within  the  city  of  Minneapolis.  It  shall  be  entitled  to  de- 
mand, have  and  receive  all  moneys  which  have  accrued  or  shall 


STATE  7.  ROGERS.  847 

accrue  to  either  of  said  districts,  or  to  said  united  district,  for 
school  purposes,  under  any  law  of  this  state,  or  otherwise,  and  may 
appropriate  and  use  such  moneys  for  the  support  and  maintenance 
of  the  schools  within  such  district  as  such  board  may  deem  best. 
It  may  also  hire  or  erect  and  maintain,  as  it  shall  deem  best,  school- 
houses  and  school-rooms,  but  it  shall  never  erect  any  building  upon 
land  to  which  it  has  not  the  title  in  fee  simple.  It  may  employ 
superintendents  and  teachers,  and  make  rules  and  regulations  for 
the  government  of  schools,  and  for  the  employraent  and  examina- 
tion of  teachers,  and  prescribing  their  powers  and  duties ;  and  pre- 
scribing the  description,  grading  and  classification  of  scholars  and 
their  management,  and  the  course  of  instruction  and  books  to  be 
used,  and  all  other  matters  pertaining  to  the  government  and  wel- 
fare of  schools.     It  may  also  make  by-laws,  rules  and  regulations 

for  its  government Said  board  of  education  is  hereby 

authorized  and  empowered  to  levy  upon  the  taxable  property  in 
said  city  such  taxes  as  will  raise  sufficient  sums  of  money  for  all 
school  purposes  of  every  character,  including  the  purchase  of  sites 
and  building  and  repairs  of  school  houses,  and  expenses  incident 
to  the  maintenance  thereof,  and  as  will  also  provide  for  the  prompt 
payment  of  all  indebtedness  of  said  district:  Provided,  that  the 
aggregate  annual  levy  of  such  taxes  shall  never  exceed  in  any  one 
year  four  mills  on  the  dollar  upon  the  assessed  valuation  of  such 
district." 

From  &  consideration  of  these  statutes,  we  do  not  think  the  legis- 
lature intended  to  confer  upon  the  board  of  education  authority 
to  exact  from  the  teachers  one  per  cent,  of  their  salaries  for  the 
purposes  outlined  in  the  rules  and  regulations  above  referred  to^ 
The  question  before  us  must  be  disposed  of  upon  the  facts  appear- 
ing in  the  petition,  and  we  are  not  prepared  to  concede  that  the 
relator  voluntarily  relinquished  that  proportion  for  such  purposes. 
The  conviction  cannot  be  avoided  that  the  effect  of  such  require- 
ment, when  applied  to  all  teachers  employed,  must  be  to  compel 
some  of  them,  at  least,  to  enter  into  the  contract  upon  compulsion 
and  without  any  expectation  of  receiving  any  personal  benefit 
therefrom.  It  is  difficult,  therefore,  to  sustain  the  validity  of  the 
act  on  the  part  of  the  board  of  education  in  thus  withholding  the 
one  per  cent,  of  the  salaries  upon  the  ground  that  such  a  plan  was 
voluntarily  entered  into  by  the  teachers  in  signing  the  contract. 

We  do  not  wish  to  intimate  that  the  care  of  those  who  have  given 
their  life-work  to  a  cause  of  such  benefit  to  the  public  may  not  to 


348  COMPENSATION  OF  OFPICEES. 

some  extent  be  provided  for  when  the  limit  of  activity  is  reached, 
and  the  fund  for  that  purpose  be  raised  by  taxation.  It  certainly 
conduces  to  the  welfare  of  the  school  system  to  make  it  profitable 
and  attractive  for  persons  to  devote  themselves  to  the  work,  and, 
if  it  would  attract  to  the  service  a  better  class  of  teachers,  is  not 
such  an  object  for  the  benefit  and  welfare  of  the  school  system? 
Conceding,  therefore,  that  the  legislature  might  grant  the  power, 
within  proper  limits,  to  provide  a  fund  for  such  a  purpose,  it  is 
very  clear  that  it  has  not  been  done  by  the  enactments  above  re- 
ferred to.  At  the  time  of  the  passage  of  these  laws  we  are  not 
aware  that  any  such  power  had  been  exercised  by  boards  of  educa- 
tion within  this  state.  The  legislature  had  never  attempted  to  deal 
with  the  subject,  and  no  board  of  education  had  ever  endeavored 
to  put  it  in  use.  There  is  no  reason  for  assuming  that  the  legisla- 
ture contemplated  any  such  object,  and  there  is  certainly  nothing 
within  the  language  employed  to  intimate  that  such  unusual  and 
extraordinary  power  was  intended  to  be  implied. 

The,  authority  of  the  board  is  also  questioned  upon  the  ground  I 
that  the  money  retained  is  in  fact  public  money,  and  not  the  pri- 
vate funds  of  the  teachers.  It  does  not  seem  very  material  whether 
the  money  so  assigned  be  considered  public  or  private  funds, — the 
result  must  be  the  same.    But  it  is  interesting  to  notice  what  th^ 
practical  effect  is  of  carrying  out  the  plan  outlined  in  the  petition. 
If  the  entire  salary  had  been  paid  to  relator,  and  he  had  then  vol-H 
untarily  relinquished  or  paid  back  one  per  cent,  thereof  for  the  / 
purposes  expressed,  it  would  clearly  be  private  money;  but  one 
per  cent,  never  had  been  paid  in  fact,  and  it  never  was  contem- 
plated that  it  would  be.    When  the  relator  entered  into  the  contract] 
he  surrendered  absolute  control  over  that  portion  of  his  salary,  and,  / 
in  effect,  entered  into  a  contract  with  the  board  that  his  salar^ 
would  be  ninety-nine  per  cent,  of  the  amount  nominally  stated.    So 
from  this  view  of  the  case  it  appears  to  us  that  the  money  retained 
never  left  the  treasury,  but  remained  public  money,  and  the  board 
of  education  had  no  authority  to  divert  it  from  the  uses  mentioned 
in  the  statute. 

Judgment  affirmed. 

See  also  Hubbard  v.  State  (Ohio),  58  L.  R.  A.  654,  which  holds  that 
under  a  constitutional  provision  requiring  all  taxation  to  be  equal  and 
uniform  the  legislature  may  not  require  deductions  from  the  pay  of  ofll- 
cers  to  be  paid  into  a  pension  fund. 


CHAPTER  VIL 

THE  EXERCISE  OF  OFFICIAL  AUTHORITY. 

I.    Gener.\l  Prerequisites  op  Valid  Action. 

1.     Territorial  Jurisdiction. 

PAGE  V.  STAPLES. 

Supreme  Court  of  Rhode  Island.    May.  JS81. 
13  B.  I.,  306. 

Exceptions  to  the  Court  of  Common  Pleas. 

This  action  was  trespass  for  assault  and  false  imprisonment 
brought  in  the  Court  of  Common  Pleas.  The  defendant,  Staples,  a 
deputy  sheriff  of  the  county  of  Providence,  arrested  the  plaintiff 
Page  on  a  writ  issued  by  the  justice  court  of  the  town  of  Glouces- 
ter, May  31,  1879,  and  made  returnable  June  14,  1879,  in  an  action 
of  trover  brought  by  one  Jedidiah  Sprague  against  said  Page.  The 
arrest  was  made  June  5,  1879,  in  the  town  of  Scituate.  At  the  trial 
in  the  Court  of  Common  Pleas,  Page  adduced  testimony  to  show 
.  .  .  .  that  Staples,  in  conducting  him  to  the  county  jail  in 
the  county  of  Providence,  carried  him  through  a  part  of  Kent 
county. 

The  plaintiff  was  non-suited  by  the  presiding  justice,  and  brought 
the  case  into  this  court  by  exceptions  to  the  non-suit. 

Matteson,  J. 

We  do  not  think  that  the  defendant  can  justify  the  taking  of  the 
plaintiff  through  a  part  of  Kent  county  for  the  purpose  of  commit- 
ting him  to  the  jail  in  Providence  county.  In  the  absence  of  stat- 
utory provisions,  the  power  of  a  sheriff  is  limited  to  his  own  county. 
He  is  to  be  adjudged  as  sheriff  in  his  own  county  and  not  elsewhere. 
He  cannot,  therefore,  execute  a  writ  out  of  his  own  county,  and  if 
he  attempts  to  do  so  becomes  a  trespasser.  The  only  exceptions 
to  this  principle  are,  that  having  a  prisoner  in  his  custody  upon  a 
writ  of  habeas  corpus,  he  has  power,  by  virtue  of  the  writ,  to 
travel  through  other  counties,  if  necessary  in  order  to  take  his 
prisoner  to  the  place  where  the  writ  is  returnable;  and  he  may, 

349 


350  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

also,  upon  fresh  pursuit,  retake  a  prisoner  who  has  escaped  from 
his  custody  into  another  county.  Piatt  v.  The  Sheriff  of  Londmi, 
Plowd.  35,  37;  Hammond  v.  Taylcn-,  3  B.  &  A.  408;  Watson's 
Sheriff,  60,  61;  Avery  v.  Seeley,  3  Watts  &  Serg.  494,  497.  In  the 
case  at  bar  the  plaintiff  did  not  escape  from  the  defendant's  cus- 
tody into  Kent  county,  but  was  voluntarily  taken  by  the  defend- 
ant into  that  county.  The  moment  they  crossed  the  line  between 
the  counties,  into  Kent  county,  the  defendant  ceased  to  have  any 
authority  over  the  plaintiff.  He  had  no  more  right  to  detain  him 
in  that  county  than  he  would  have  had  to  arrest  him  there. 

The  exception  is  sustained  and  the  case  remanded  to  the  Court 
of  Common  Pleas  for  a  new  trial. 


2.  Disqualification  on  Account  of  Personal  Interest. 

GOODYEAR  V.  BROWN. 

Supreme  Court  of  Pennsylvania,  May,  1893. 
155  Pa.  St.  514. 

Opinion  by  Mr.  Justice  Williams,  May  22,  1893: 
It  is  true,  as  the  appellants  contend,  that  there  is  no  enactment 
to  be  found  in  the  statute  book  of  this  State  which  in  words  for- 
bids the  secretary  of  internal  affairs  to  receive  his  own  individual 
application  for  a  land  warrant,  grant  it,  cause  a  survey  to  be  made 
and  returned  upon  it,  accept  the  return  of  survey,  pass  upon  the 
validity  of  the  survey,  as  a  member  of  the  board  of  property,  and 
finally  cause  a  patent  to  issue  to  himself,  the  individual,  for  the 
land  included  within  it.  But  it  does  not  follow  that  everything 
may  be  done  by  a  public  officer  that  is  not  forbidden  in  advance 
by  some  act  of  assembly.  Remedies  are  provided  for  evils  when 
they  are  discovered,  and  rules  of  law  are  applied  when  a  necessity 
firises  for  their  application. 

What  was  alleged  in  this  case,  and  was  held  by  the  learned 
judge  of  the  court  below,  is  that  dealings  between  a  public  officer 
ftnd  himself  as  a  private  citizen  that  bring  him  in  collision  with 
other  citizens,  equally  interested  with  himself  in  the  integrity  and 
impartiality  of  the  officer,  are  against  public  policy.  In  a  general 
way  it  may  be  said  Chat  public  policy  meano  the  public  good.  Any- 
thing that  tends  clearly  to  injure  the  public  health,  the  public 


GOODYEAR  V.  BROWN.  351 

morals,  the  public  confidence  in  the  purity  of  the  administration 
of  the  law,  or  to  undermine  that  sense  of  security  for  individual 
rights,  whether  of  personal  liberty  or  of  private  property,  which 

any  citizen  ought  to  feel,  is  against  public  policy 

We  proceed,  therefore,  to  inquire  whether  the  defendant's  title  is 
affected  by  public  policy.  The  office  of  secretary  of  internal  af- 
fairs is  a  comparatively  new  one,  having  been  created  by  the  pres- 
ent constitution  of  the  State.    Its  powers  and  duties  are  defined  by 

the  act  of  May  11,  1874 Among  other  duties  and 

responsibilities  committed  to  the  secretary  of  internal  affairs  are 
all  those  formerly  resting  on  the  surveyor  general.  He  has  the 
survey  and  sale  of  the  public  lands,  and,  in  connection  therewith 
and  as  incidental  thereto,  he  has  the  exclusive  custody  of  all 
books,  documents,  maps  and  returns  or  surveys  relating  to  them, 
to  State  and  county  lines,  to  State  and  turnpike  roads,  and  to  rail- 
roads, canals  and  other  public  improvements.  Applications  for 
the  survey  of  any  part  of  the  public  lands  must  be  made  to  him. 
If  granted  he  issues  the  warrant  to  the  proper  deputy  surveyor  to 
make  the  survey.  "When  the  survey  is  made  it  must  be  returned 
to  him  for  acceptance.  The  patent  or  deed  of  the  State  issues  only 
on  his  certificate  or  direction.  Every  step  in  the  patentee's  title, 
every  particle  of  evidence  relating  to  each  step,  down  to  the  deliv- 
ery of  the  patent,  is  to  be  found  in  his  office,  if  it  is  to  be  found 
at  all;  and  can  only  be  seen  under  his  direction.  All  copies  for 
use  in  the  courts  must  be  made  and  certified  by  him.  In  fact,  he 
is  the  custodian  of  all  the  public  records  relating  to  all  the  lands 
in  the  State;  and  upon  his  fidelity  titles  of  vast  importance  and 

value  depend But  he  is  more  than  a  custodian  of 

these  evidences  of  title.  He  is,  by  virtue  of  his  office,  a  member 
of  the  board  of  property,  and  sits  therein  as  a  judge  to  hear  and 
determine  all  questions  raised  by  caveat  or  petition  affecting  re- 
turns of  survey,  the  location  of  warrants  and  warrant  lines,  the 
rights  of  settlers  and  the  titles  of  patentees.  The  nature  of  his 
duties  disqualifies  such  an  officer  from  dealing  with  his  own  depart- 
ment, or  sitting  in  judgment  on  his  own  or  his  adversary's  title  of 
the  public  lands,  as  clearly  as  does  the  office  of  president  of  the 
court  of  common  pleas  disqualify  the  individual  who  holds  the 
office  from  personally  conducting  his  own  litigation,  in  his  own 
court  before  himself. 

"We  have  in  the  case  now  under  consideration  a  striking  and 
startling  illustration  of  the  practical  operation  of  the  doctrine 


352  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

contended  for  by  the  appellant.  The  plaintiff  is  an  extensive 
manufacturer  of  sawed  lumber  in  the  county  of  Potter.  Among 
the  lands  purchased  by  him  for  the  supply  of  his  mills  with  timber 
is  a  large  tract  known  as  No.  4714  in  the  warrantee  names  of  Isaac 
Wharton  et  al.  This  tract  purports  to  be  one  of  a  block  of  sur- 
veys made  at  the  same  time,  of  which  No.  4724  is  a  member  and  is 
called  for  as  an  adjoinder  of  4714.  The  plaintiff  and  those 
through  whom  he  derives  his  title  have  paid  taxes  on  this  tract  for 
nearly  a  century,  and  have  understood  and  claimed  that  it  was  lo- 
cated adjoining  No.  4724,  as  the  calls  would  indicate.  In  1891  the 
deputy  secretary  of  internal  affairs  procured  a  warrant  to  be 
issued  to  himself  for  nine  hundred  acres  of  land  alleged  to  be 
vacant,  situated  in  the  county  of  Potter  and  adjoining  No.  4724. 
It  was  promptly  returned  by  the  deputy  surveyor  for  Potter 
county  with  a  survey  covering  most  if  not  all  of  the  land  claimed 
by  plaintiff  under  No.  4714.  The  plaintiff  becoming  aware  of  the 
survey  so  made  appeared  before  the  board  of  property  to  protest 
against  the  attempt  to  appropriate  his  land.  This  tribunal  promptly 
decided  against  him,  and  a  patent  was  as  promptly  issued  to  the 
deputy  secretary  of  internal  affairs,  with  the  fullest  knowledge  on 
the  part  of  both  the  secretary  and  his  deputy  that  the  land  was 
claimed  under  an  older  warrant.  There  was  nothing  left  for  the 
plaintiff  but  an  appeal  to  the  courts.  This  he  had  to  make  with 
the  knowledge  that  every  paper,  and  every  scrap  of  evidence  re- 
lating to  the  issuing,  location  and  return  of  his  warrant,  was  in 
the  possession  and  under  the  control  of  his  adversary.  He  could 
have  an  inspection  of  these  papers  and  documents  only  by  permis- 
sion of  the  officer  who,  as  an  individual,  was  interested  in  de- 
feating his  title.  He  must  apply  to  the  same  officer  for  the  copies 
needed  for  the  trial  of  his  cause.  The  antagonism  between  the 
duties  of  the  officer  and  the  pecuniary  profit  of  the  man  who  helJ 
the  office  is  plain  and  direct.  It  was  brought  about  by  the  volun- 
tary act  of  the  officer  having  at  the  time  the  fullest  knowledge 
of  the  situation,  and  of  the  necessary  consequences  of  his  conduct. 
In  such  a  contest  the  officer  has  an  advantage  never  contemplated 
or  provided  for  by  the  law  makers.  He  is  expcfeed  to  a  tempta- 
tion from  which  he  should  have  fled.  The  department  under  his 
practical  control  is  subjected  to  criticism  and  suspicions  that 
have  a  tendency  to  create  public  distrust  of  the  integrity  of  its 
administration,  and  of  the  security  of  titles  depending  on  the 
records  under  its  care.  But  the  contagion  of  the  example  set  by 
the  deputy  secretary  is  noticeable.     When  the  trial  was  reached 


GOODYEAR  V.  BROWN.  353 

in  the  court  below,  it  turned  out  that  the  deputy  surveyor  who 
located  the  warrant  of  1891,  and  who  had  the  rightful  custody 
of  the  records  of  that  office,  was  put  in  an  unfortunate  position 
for  his  disinterestedness  as  a  witness  by  the  fact  that  his  wife 
had  become  a  part  owner  of  the  land  under  a  grant  from  the 
deputy  secretary.  An  experienced  surveyor  from  an  adjoining 
county,  whose  familiarity  with  the  original  lines  in  that  region 
made  his  testimony  of  great  importance  in  reaching  a  conclusion 
as  to  the  proper  location  of  4714,  had  been  placed  in  the  same 
predicament,  by  the  same  expedient.  His  wife  was  also  a  part 
owner,  deriving  her  title  from  the  deputy  secretary.  Surely  the 
owner  of  No.  4714  was  in  gremio  legis.  This  remarkable  combina- 
tion may  have  been  accidental.  We  presume  it  was  innocent. 
Nevertheless  to  litigants  whose  property  is  at  stake,  and  to  specu- 
lators, measuring  the  acts  of  men  by  the  common  business  stand- 
ards, it  suggests  possible  dangers  and  temptations  on  which  we  will 
not  enlarge.  Such  dealings  by  an  officer  are  to  be  regretted  be- 
cause of  their  necessary  consequences;  and  a  proper  consideration 
for  the  public  security,  and  for  the  confidence  of  citizens  in  the 
officers  of  the  State,  forbid  them.  "Whether  we  consider  the  inter- 
ests of  the  citizens  for  whose  security  and  protection  the  State 
exists,  or  the  preservation  of  public  confidence  in  the  purity  of  the 
administration  of  public  affairs,  or  the  honor  and  character  of  the 
officer  as  a  public  servant,  the  conclusion  reached  is  the  same. 
Public  policy  cannot  tolerate  such  dealings  by  an  officer  with  his 
own  department  or  office.    It  will  not  uphold  them. 

It  follows  that  the  warrant  issued  to  the  deputy  secretary  of 
internal  affairs  confers  no  title,  as  against  a  claimant  under  an 
older  survey,  to  the  land  in  controversy.  The  warrant  was  issued 
contrary  to  public  policy.  The  board  of  property  should  have 
refused  to  accept  the  return  of  survey  under  it  and  to  permit  a 
patent  to  issue  for  it.  The  learned  judge  of  the  court  below 
rightly  rejected  it  when  offered  on  the  trial,  for  the  purpose  of 
showing  title  in  the  appellants,  and  the  judgment  is  now  affirmed. 


23 


354  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

MOSES  V.  JULIAN. 

Supreme  Judicial  Court  of  New  Hampshire.    December,  1863. 
45  New  Hampshire,  52. 

Theodore  Moses,  on  the  16th  day  of  September,  1861,  made  his 
will,  and  on  the  16th  day  of  June,  1862,  executed  a  codicil  an- 
nexed to  it,  and  subsequently  died. 

At  the  court  of  probate,  held  at  Exeter,  on  the  day  of        , 

1863,  for  the  County  of  Rockingham,  the  will  was  presented  for 
probate  by  two  of  the  executors  named  in  it,  the  third  having  de- 
clined to  act,  and  on  the  14th  day  of  January,  1863,  it  was  proved 
and  approved  as  said  Moses'  last  will. 

On  the  26th  daj'  of  February,  1863,  the  appellants,  Luke 
Julian  and  his  wife,  Abigail  T.  Julian,  who  was  a  daughter,  and 
one  of  the  heirs  at  law  of  said  Moses,  claimed  an  appeal  from 
the  decree  of  the  Judge  of  Probate,  which  was  allowed,  and  was 
entered  at  the  next  time  of  the  Supreme  Judicial  Court  for  said 
County,  and  at  the  June  term,  1863,  the  executors  acting,  came 
into  court  and  moved  that  the  said  instrument  may  be  proved  as  the 
last  will  of  said  Moses. 

Thereupon  the  appellants  plead  that  the  same  ought  not  to  be 
approved  and  allowed  as  aforesaid:  I.  Because,  they  say,  that  at 
the  time  of  making  and  executing  said  instrument  by  said  Theo- 
dore Moses,  bearing  date  on  said  16th  day  of  September,  1861,  it 
had  no  seal  upon  it;  and  this,  etc.,  and  issue  was  joined.  II. 
Because,  they  say,  that  the  Judge  of  Probate  for  said  County 
of  Rockingham  was  of  counsel,  and  advised  said  Theodore  Moses 
in  relation  to  said  paper,  or  instrument,  dated  on  the  16th  day 
of  September,  1861.  III.  And  because  the  Judge  of  Probate  for 
the  County  of  Rockingham  wrote  said  instrument,  and  thereby 
being  interested,  approved  and  allowed  said  instrument,  dated 
September  16th,  1861,  in  his  official  capacity.  To  the  two  last 
pleas  there  was  a  general  demurrer.  And,  IV,  because  said  instru- 
ment being  indefinite  and  uncertain,  is  void:  to  this  plea  there  is 
an  issue  to  the  country. 

Bell,  C.  J.  The  most  perfect  integrity  that  can  be  in  judges 
is  no  hinderance  why  the  parties,  who  have  causes  depending 
before  them,  may  not  challenge  them,  or  except  against  them, 
and  why  they  ought  not,  of  their  own  accord,  to  abstain  from 
hearing  cauises  in  which  they  may  have  some  interest,  or  where 
there  may  be  some  just  ground  for  suspecting  them,  and  they 


MOSES  V.   JULUN.  355 

themselves  are  obliged  to  declare  the  causes  which  may  render 
them  suspected,  if  the  parties  are  ignorant  of  them ;  for  although  a 
judge  may  be  above  the  weakness  of  suffering  himself  to  be  biased 
or  corrupted,  and  may  have  resolution  enough  to  render  justice 
against  his  own  relations,  and  in  the  other  cases  where  it  may  be 
lawful  for  the  parties  to  except  against  the  judges,  yet  they  ought 
to  mistrust  themselves,  and  not  draw  upon  themselves  the  just 
reproach  of  a  rash  proceeding,  which  would  be  in  effect  a  real 
misdemeanor.    Domat  Pub.  Law,  Lib.  2,  Tit.  1,  sec.  2,  14. 

The  judge,  who  is  satisfied  that  he  is  legally  disqualified  to  act 
in  a  case,  ought  not  to  wait  until  the  parties  object  to  him,  but 
should  refuse  to  hear  the  cause,  by  an  entry  on  the  docket  that  he 
does  not  sit  in  the  ease.  Edwards  v.  Bussell,  21  Wend.  64;  Pad- 
dock V.  Welles,  2  Barb.  333;  Steamboat  Co.  v.  Livingston,  3  Cow. 
724;  Ten  Eyck  v.  Simpson,  11  Paige  179;  Great  Charte  v.  Ken- 
sington, 2  Stra.  1173;  Bouvier  Law  Dict'y,  Art.  "Judge;"  Pothier, 
Pro.  Civ.  ch.  2,  sec.  5.  This  is  the  immemorial  practice  of  the 
courts,  and  of  constant  occurrence.  Begina  v.  Justices,  14  E.  L.  & 
E.  93;  S.  C.  16  Jur.  612. 

As  the  judge  is  not  supposed  to  know  anything  of  the  cases  to 
be  tried  until  the  trial  is  commenced,  unless  by  accident,  it  may 
aften  happen  that  he  knows  nothing  of  any  cause  of  disqualifi- 
cation. It  is,  therefore,  the  right  and  duty  of  the  party  who 
desires  to  object  to,  or  recuse  a  judge,  as  he  has  a  right  to  do, 
(2  Dom.  559)  to  make  his  objection  by  a  petition  to  the  court, 
setting  forth  the  facts  on  which  he  relies  as  a  disqualification, 
and  requesting  that  the  judge  would  not  sit  on  the  trial  of  the 
case.  Just.  Code  1.  1,  Tit.  1,  16  Voet  ad  Pand.  L.  5,  Tit.  1,  43. 
The  facts  being  unquestioned,  the  judge  may  cause  the  entry  to  be 
made  that  he  does  not  sit.  If  the  facts  alleged  are  not  admitted 
by  the  judge,  or  are  denied  by  the  adverse  party,  it  is  the  duty  of 
the  party  objecting  to  lay  before  the  court  the  proof  of  their 
truth,  upon  which  the  other  judges,  if  others  are  present,  will 
decide,  or  the  judge,  or  justice,  if  alone,  will  decide.  Pothier, 
ub.  sup. 

The  35th  article  of  the  Bill  of  Rights  of  New  Hampshire  de- 
clares that  "it  is  essential  to  the  rights  of  every  individual,  his 
life,  liberty,  property  and  character,  that  there  should  be  an  im- 
partial interpretation  of  the  laws  and  administration  of  jus- 
tice." And  "it  is  the  right  of  every  citizen  to  be  tried  by  judges 
as  impartial  as  the  lot  of  humanity  will  admit."    This  is  but  the 


,356  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

expression  of  a  well  known  rule  of  universal  justice  everywhere 
recognized,  which  the  people  of  this  State  were  anxious  to  secure 
as  far  as  possible  from  all  doubts,  or  possibility  of  legislative  inter- 
ference. It  is  one  of  the  great  principles  of  the  common  law,  for 
which  the  people  of  England  had  struggled  for  ages,  and  which 
they  ultimately  succeeded  in  establishing  against  the  strenuous 
efforts  of  a  tyrannical  government.  We  can  have  no  higher  author- 
ity than  this  for  denouncing  as  illegal  everything  which  interferes 
with  the  entire  impartiality  of  every  legal  tribunal. 

I.  No  man  ought  to  be  judge  in  his  own  cause,  is  a  maxim  aimed 
at  the  most  dangerous  source  of  partiality  in  a  judge.  Peck  v 
Freeholders,  &c.,  1  N.  J,  656;  Hawley  v.  Baldwin,  19  Conn.  585 
Jtussell  V.  Perry,  14  N.  H.  132;  Allen  v.  Bruce,  12  N.  H.  418;  Dig 

1,  1,  de  jurisdictione ;  1  Broke  Ab.  177.  Conusans  27;  Broom's  Max 
ims  84;  Co.  Litt.  141,  a;  Litt.  sec.  212;  Derby's  case,  12  Rep.  114; 
Dig.  L.  5,  T.  1.  17.  It  is  not  necessary  that  a  judge  should  be  a 
party  to  the  cause  to  create  this  disqualification.  If  he  is  inter- 
ested in  a  suit  brought  in  another's  name,  he  is  equally  disquali- 
fied. Foot  v.  Morgan,  1  Hill  654;  Wright  v.  Crump,  2  Ld.  Ray 
766. 

Generally  an  interest  in  the  question,  as  distinct  from  a  pe- 
cuniary interest  in  the  result  of  the  cause,  is  no  valid  ground  of 
recusation,  Northampton  v.  Smith,  11  Met.  390 ;  Poth.  Pro.  Civ.  ch. 

2,  sec.  5;  People  v.  Edmonds,  15  Barb.  529.  To  this,  however, 
there  is  an  exception;  where  the  judge  has  a  law  suit  pending 
or  impending  with  another  person,  which  rests  upon  a  like  state 
of  facts,  or  upon  the  same  points  of  law,  as  that  pending  before 
him;  this  is  a  valid  disqualification.  Davis  v.  Allen,  11  Pick.  466; 
"Ersk.  Inst.  Tit.  2,  26;  Poth.  ub.  sup.;  Voet  ad  Pand.  L.  5,  T.  1, 
44. 

II.  Relationship  or  affinity  to  either  party  in  interest,  though 
only  a  stockholder  in  a  corporation.  Place  v.  Butternuts,  &c.,  28 
Barb.  503,  or  not  party  to  the  suit,  Foot  v.  Morgan,  1  Hill  654,  is 
a  cause  of  recusation  by  either.  Steamboat  Co.  v.  Livingston,  3 
Cow.  724;  Kelley  v.  Hackett,  10  Ind.  299 ;  Poth.  Pro.  Civ.  ch.  2,  sec. 
5;  Dig.  47,  10,  5;  Code  du  Pro.  Civ.  378;  Ersk.  Inst.  T.  2,  33; 
Durand's  Spec.  Juris.  19,  in  civil  matters  to  the  fourth  degree  at 
least,  that  is,  to  cousins  german  inclusive,  Sanborn  v.  Follows,  22 
N.  H.  473;  Bean  v.  Quimby,  5  N.  H.  98;  Gear  v.  Smith,  9  N.  H. 
63;  Voet  ad  Pand.  L.  5,  T.  1,  45.  In  many  jurisdictions  the  ex- 
clusion extends  much  further,  Oakley  v.  Aspenwall,  3  Comst.  547 ; 


MOSES  V.   JtJLIAN.  357 

Voet  ad  Pand.  ubi  sup;  People  v.  Cline,  23  Barb.  200;  Post  v. 
Black,  5  Denio  166. 

III.  The  friendly  or  hostile  relations  existing  between  a  judge 
and  one  of  the  parties,  may  be  good  ground  of  recusation,  Voet 
ub.  sup. 

Among  this  class  of  disabilities  is  that  chiefly  in  question  in  this 
case,  the  fact  that  the  judge,  as  is  alleged,  has  a^ted  as  coun- 
sel for  the  party  in  the  same  cause;  which  has  always  been  held 
everywhere  to  justify  the  suspicion  and  belief  that,  however  up- 
right he  may  be,  he  cannot  avoid  favoring  the  cause  of  his  late 
client.  It  is  consequently  everywhere  a  just  cause  for  the  judge 
to  withdraw,  or  for  the  party  to  recuse  him.  Ten  Eyck  v.  Simp- 
son, 11  Paige  179;  McLaren  v.  Cheney,  5  Paige  532;  Pothier  and 
Voet  ub.  sup;  Louisiana  Code  of  Practice  159;  Code  Civ.  Pro. 
178;  State  v.   House,  28  Miss.     (7  Jones)   233;  Dig.  47,  10,  5. 

Our  own  reports  abound  with  entries  that  J.,  having 

been  of  counsel,  did  not  sit,  and  the  dockets  furnish  evidence 
abundant  that  the  law  which  called  for  such  entries  was  recog- 
nized and  acted  upon  long  before  we  had  reports,  and  see  Begina 
v.  Justices,  14  E.  L.  &  E.  93;  Smith  v.  Smith,  2  Breenl.  408; 
Whicher  v.  Whicher,  11  N.  H.  348 ;  that  one  who  has  acted  as  coun- 
sel in  taking  depositions  cannot  act  as  a  magistrate  in  taking 
others. 

And  our  statute,  which  forbids  any  justice  of  the  Supreme  Judi- 
cial Court  to  sit  upon  the  trial  of  any  cause  in  which  he  has  been 
concerned  as  party,  or  attorney,  and  forbids  him  to  act  as  attor- 
ney, or  to  be  of  counsel,  or  to  give  advice  in  any  matter  which 
in  the  ordinary  course  of  proceedings  may  come  before  the  court 
of  which  he  is  justice,  for  adjudication,  Stat.  1855,  ch.  1659,  sec.  23, 
must  be  regarded  as  a  legislative  recognition  of  the  common  law, 
applicable  to  all  judges  and  judicial  officers. 

This  objection  is  purely  personal.  It  has  no  application  to  the 
case  of  near  relatives  of  the  judge  having  been  counsel,  Voet  ub. 
sup.,  nor  to  the  judge  having  been  counsel  in  any  other  case  but, 
it  will  be  held  valid  where  the  cause  is  substantially  the  same, 
though  it  may  not  be  precisely  identical. 

It  seems  to  us  very  clear,  that,  a  fortiori,  the  acting  as  advocate 
and  giving  of  counsel  in  a  case,  whence  a  cause  in  court  maj-- 
spring  up,  after  the  judge  has  received  his  appointment,  must  be 
good  cause  of  disqualification  as  a  judge,  independent  of  any  statu- 


358  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

tory  enactment.  It  is  the  fact  that  the  judge  has  acted  as  attor- 
ney, counsel,  law  adviser,  or  advocate,  in  relation  to  the  business 
in  hand,  that  furnishes  the  just  cause  of  exception,  without  ref- 
erence to  the  time  when  such  aid  or  counsel  was  given. 

We  have,  then,  to  turn  our  attention  to  the  constitutional  and 
legal  provisions  bearing  on  this  subject,  to  see  how  far,  and  with 
what  effect,  they  bear  upon  the  case,  of  which  the  principal  ques- 
tion presented  to  us  upon  these  pleadings  is,  how  far  the  validity 
of  a  will,  and  the  judicial  powers  of  a  judge  of  probate,  are  affected 
by  the  fact  alleged  that  the  judge  of  probate,  in  whose  court  the 
will  must  be  proved,  wrote  the  will,  and  counselled  and  advised 
the  testator  as  to  its  form  and  execution. 

The  constitutional  provisions  bearing  upon  this  subject  are 
as  follows:  Part  II,  Art.  79 — "No  judge  of  any  court,  or  justice 
of  the  peace,  shall  act  as  attorney,  or  be  of  counsel  to  any  party, 
or  originate  any  civil  suit  in  matters  which  shall  come  or  be  brought 
before  him  as  judge,  or  justice  of  the  peace."  Art.  81 — "No  judge, 
or  register  of  probate,  shall  be  of  counsel,  act  as  advocate,  or  re- 
ceive any  fees  as  advocate,  or  counsel,  in  any  probate  business 
which  is  pending,  or  may  be  brought  into  any  court  of  probate 
in  the  county  of  which  he  is  judge  or  register." 

The  prohibition  of  the  constitution  applies  to  this  case.  Its  ef- 
fect is  to  disqualify  the  judge  to  sit  in  the  hearing,  or  decision 
upon  the  proof  of  such  a  will.  It  does  not  necessarily  imply  any 
improper  motives,  since  the  practice  has  been  common  and  with- 
out question.  None  such  can  be  even  suspected  in  the  present 
case. 

The  demurrers  are  sustained.  As  issues  in  probate  cases  are 
drawn  under  the  direction  of  the  court,  we  deem  it  proper  to  sug- 
gest that  the  issue  upon  the  last  plea  is  so  drawn  as  to  refer  to 
the  jury  a  question  which  must  be  decided  by  the  court  alone. 
If  the  indefiniteness  and  uncertainty  alleged  appear  upon  the 
face  of  the  will,  the  course  should  be  to  crave  oyer  of  the  will,  set 
it  out  upon  the  record  and  aver  that  it  ought  not  to  be  proved,  be- 
cause it  is  void  and  inoperative  by  reason  of  indefiniteness  and  un- 
certainty, and  a  demurrer  would  properly  refer  the  question  to 
the  court. 

If  the  defect  grows  out  of  matter  of  fact  not  apparent  on  the 
face  of  the  will,  it  should  be  set  out  on  oyer  and  the  matter  of 
fact  alleged  so  as  to  afford  an  opportunity  to  controvert  the  fact, 
or  deny  the  conclusion. 


FRENCH   V.   EDWARDS.  359 

3.    Mandatory  and  Discretionary  Duties. 

FRENCH  V.  EDWARDS. 

Supreme  Court  of  the  United  States.     December,  1871. 
13  Wall.  506. 


This  was  an  action  for  the  possession  of  a  tract  of  land  situated 
in  the  county  of  Sacramento,  in  the  state  of  California. 

The  defendants  asserted  title  to  the  premises  under  a  deed 
executed  by  the  sheriff  of  Sacramento  county  upon  a  sale  upon  a 
judgment  rendered  for  unpaid  taxes  assessed  on  the  property 
for  the  year  18G4,  and  the  whole  case  turned  upon  the  validity 
of  this  tax  deed. 

The  court  instructed  the  jury  to  find  for  the  defendant;  to 
which  instruction  the  plaintiff  excepted.  Verdict  was  rendered 
on  the  3d  of  April,  1867:  and  the  bill  of  exceptions  was  signed 
and  dated  on  the  following  13th,  and  judgment  on  the  verdict 
was  entered  on  the  following  26th,  the  court  not  having  adjourned 
until  after  this  date. 

On  error  brought  by  the  plaintiff  the  main  question  was  whether 
the  departure  of  the  officer  from  the  requirements  of  the  statutes 
rendered  the  sale  invalid. 

Mr.  Justice  FiEiiD,  having  stated  the  case,  delivered  the  opinion 
of  the  court,  as  follows: 

There  are  undoubtedly  many  statutory  requisitions  intended  for 
the  guide  of  officers  in  the  conduct  of  business  devolved  upon  Jhem, 
which  do  not  limit  their  power  or  render  its  exercise  in  disregard 
of  the  requisitions  ineffectual.  Such  generally  are  regulations  de- 
signed to  secure  order,  system  and  dispatch  in  proceedings,  and 
by  a  disregard  of  which  the  rights  of  parties  interested  cannot  be 
injuriously  affected.  Provisions  of  this  character  are  not  usually 
regarded  as  mandatory  unless  accompanied  by  negative  words  im- 
porting that  the  acts  required  shall  not  be  done  in  any  other  man- 
ner or  time  than  that  designated.  But  when  the  requisitions  pre- 
scribed are  intended  for  the  protection  of  the  citizen,  and  to  pre- 
vent a  sacrifice  of  his  property,  and  by  a  disregard  of  which  his 
rights  might  be  and  generally  would  be  injuriously  affected,  they 


360  THE  EXERCISE  OF  OPFICTAI.  AUTHORITY. 

are  not  directory  but  mandatory.  They  must  be  followed  or  the 
acts  done  will  be  invalid.  The  power  of  the  oflficer  in  all  such 
cases  is  limited  by  the  manner  and  conditions  prescribed  for  its 
exercise. 

These  positions  will  be  found  illustrated  in  numerous  cases 
scattered  through  the  reports  of  the  courts  of  England  and  of 
this  country.  They  are  cited  in  Sedgwick's  Treatise  on  Statutory 
and  Constitutional  Law  (pp.  368-378),  and  in  Cooley's  Treatise  on 
Constitutional  Limitations  (Ch.  IV,  pp.  74-78.) 

Tested  by  them  the  sale  of  the  sheriff  in  the  case  before  us  cannot 
be  upheld.  The  provision  of  the  statute,  that  he  shall  only  sell 
the  smallest  quantity  of  the  property  which  any  purchaser  will 
take  and  pay  the  judgment  and  costs,  is  intended  for  the  protec- 
tion of  the  taxpayer.  It  is  almost  the  only  security  afforded  him 
against  the  sacrifice  of  his  property  in  his  absence,  even  though  the 
assessment  be  irregular  and  the  tax  illegal. 

Judgment  reversed,  and  the  cause  remanded  for  a  new  trial. 
Mr.  Justice  Miller,  dissenting. 


SUPERVISORS  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     December,  1866. 
4  Wall.  435. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court. 

III.  The  important  question  in  the  case  is  whether  the  re- 
spondents are  compellable  to  levy  and  collect,  by  taxation,  the 
amount  specified  in  the  order  of  the  court  below. 

The  writ,  if  issued,  must  conform  to  the  order. 

The  court  below  proceeded  upon  the  act  of  February  16th,  1863. 
"We  have  not  found  it  necessary  to  consider  any  of  the  other  acts 
referred  to  in  the  briefs. 

That  act  declares  that  "the  board  of  supervisors  under  town- 
ship organization,  in  such  counties  as  may  be  owing  debts  which 
their  current  revenue  under  existing  laws  is  not  sufficient  to  pay, 
may,  if  deemed  advisable,  levy  a  special  tax,  not  to  exceed  in  any 
one  year  one  per  cent,  upon  the  taxable  property  of  any  such 


SUPERVISORS  V.  UNITED  STATES.  361 

county,  to  be  assessed  and  collected  in  the  same  manner  and  at 
the  same  time  and  rate  of  compensation  as  other  county  taxes, 
and  when  collected  to  be  kept  as  a  separate  fund,  in  the  county 
treasury,  and  to  be  expended  under  the  direction  of  the  said  county 
court  or  board  of  supervisors,  as  the  case  may  be,  in  liquidation 
of  such  indebtedness. ' ' 

The  counsel  for  the  respondent  insists,  with  zeal  and  ability, 
that  the  authority  thus  given  involves  no  duty ;  that  it  depends  for 
its  exercise  wholly  upon  the  judgment  of  the  supervisors,  and  that 
judicial  action  cannot  control  the  discretion  with  which  the  stat- 
ute has  clothed  them.  We  cannot  concur  in  this  view  of  the  sub- 
ject. Great  stress  is  laid  by  the  learned  counsel  upon  the  lan- 
guage, ''May,  if  deemed  advisable,"  which  accompanies  the  grant 
of  power,  and,  as  he  contends,  qualifies  it  to  the  extent  assumed  in 
his  argument. 

In  The  King  v.  The  Inhabitants  of  Derby,  Skinner,  370,  there 
was  an  indictment  against  ''diverse  inhabitants"  for  refusing  to 
meet  and  make  a  rate  to  pay  "the  constables'  tax."  The  defend- 
ants moved  to  quash  the  indictment,  ''because  they  are  not  com- 
pellable,  but  the  statute  only  says  that  they  may,  so  that  they  have 
their  election,  and  no  coercion  shall  be."  The  court  held  that 
"may,  in  the  case  of  a  public  officer,  is  tentamount  to  shall,  and  if 
he  does  not  do  it,  he  shall  be  punished  upon  an  information,  and 
though  he  may  be  commanded  by  a  writ,  this  is  but  an  aggrava- 
tion of  his  contempt." 

In  The  King  and  Queen  v.  Barlow,  2  Salkeld,  609,  there  was  an 
indictment  upon  the  same  statute,  and  the  same  objection  was 
taken.  The  court  said:  "When  a  statute  directs  the  doing  of  a 
thing  for  the  sake  of  justice  or  the  public  good,  the  word  may  is 
the  same  as  the  word  shall-,  thus,  23  Hen.  VI,  says  the  sheriff 
may  take  bail.  This  is  construed  he  shall,  for  he  is  compellable 
to  do  so." 

These  are  the  earliest  and  the  leading  cases  upon  the  subject. 
They  have  been  followed  in  numerous  English  and  American 
adjudications.  The  rule  they  lay  down  is  the  settled  law  of  both 
countries. 

In  The  Mayor  of  the  City  of  New  York  v.  Furze,  3  Hill,  614, 
and  in  Mason  v.  Fearson,  9  Howard,  248,  the  words  "it  shall  be 
lawful"  were  held  also  to  be  mandatory. 

The  conclusion  to  be  deduced  from  the  authorities  is,  that  where 
power  is  given  to  public  officers,  in  the  language  of  the  act  be- 
fore us,  or  in  equivalent  language — ^whenever  the  public  interest 


362  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

or  individual  rights  call  for  its  exercise — ^the  language  used,  though 
permissive  in  form,  is  in  fact  peremptory.  What  they  are  em- 
powered to  do  for  a  third  person  the  law  requires  shall  be  done. 
The  power  is  given,  not  for  their  benefit,  but  for  his.  It  is  placed 
with  the  depository  to  meet  the  demands  of  right,  and  to  prevent 
a  failure  of  justice.  It  is  given  as  a  remedy  to  those  entitled  to 
invoke  its  aid,  and  who  would  otherwise  be  remediless. 

In  all  such  cases  it  is  held  that  the  intent  of  the  legislature, 
which  is  the  test,  was  not  to  devolve  a  mere  discretion,  but  to  im- 
pose "a  positive  and  absolute  duty." 

The  line  which  separates  this  class  of  cases  from  those  which 
involve  the  exercise  of  a  discretion,  judicial  in  its  nature,  which 
courts  cannot  control,  is  too  obvious  to  require  remark.  This  case 
clearly  does  not  fall  within  the  latter  category. 

The  Circuit  Court  properly  awarded  a  peremptory  writ  of  man- 
damus.   We  find  no  error  in  the  record.    The  judgment  below  is 

Affirmed. 


MULNIX,  STATE  TREASURER  V.  MUTUAL  LIFE  INS.  CO. 

Supreme  Court  of  Colorado.    April,  1896. 
23  Colorado,  71. 

Mr.  Justice  Campbell  delivered  the  opinion  of  the  court. 

The  Insurance  Company,  as  petitioner,  by  mandamus,  seeks 
to  enforce  the  payment  of  a  State  warrant  drawn  by  the  State 
auditor  upon  the  State  treasurer.  Prior  to  the  convening  of  the 
seventh  general  assembly  the  secretary  of  state,  in  pursuance 
of  the  statute,  by  an  advertisement  duly  made,  invited  sealed  pro- 
posals for  stationery  and  certain  other  articles  required  by  said 
general  assembly  and  the  executive  department  of  state  for  two 
years  commencing  on  the  2nd  of  January,  1889. 

Lawrence  &  Co.  tendered  a  bid,  which,  upon  investigation,  was 
accepted  by  the  secretary  of  state,  and  a  contract  was  duly  entered 
into  with  them  for  supplying  such  articles  as  were  covered  by  their 
bid.  Thereafter  they  furnished  stationery  and  certain  other  ar- 
ticles to  the  general  assembly  and  to  the  various  executive  depart- 
ments, which  were  received  and  used  by  the  state.  The  statement 
of  accounts  for  the  same  were  rendered  to  the  then  auditor  of  state, 
and  by  him  audited,  settled,  approved  and  allowed,  and  thereupon 


MULNIX  V.   MUTUxVL  LIFE  INS.   CO.  363 

the  auditor  drew  upon  the  treasurer  the  warrant  which  is  the  sub- 
ject-matter of  the  controversy  here,  the  same  being  on  account  for 
the  articles  so  furnished.  This  warrant  before  the  beginning  of 
this  proceeding,  was  duly  indorsed  to  the  petitioner,  and  presented 
by  it  to  the  then  treasurer  of  the  State,  who  refused  payment. 

An  appropriation  has  been  duly  made  by  the  general  assembly 
for  the  payment  of  this  claim,  and  the  money  to  pay  the  warrant 
was  in  the  state  treasury  at  the  time  of  its  presentation,  and  is 
still  there. 

The  treasurer  made  answer  to  the  petition,  from  which,  and  the 
brief  of  the  attorney-general,  it  appears  that  the  sole  defense  relied 
upon  is  the  illegality  of  the  warrant,  which  illegality  is  said  to 
consist  in  the  fact  that  a  part  of  the  consideration  therefor  was 
illegal  in  this,  that  some  of  the  articles  furnished  to  the  general 
assembly  by  the  petitioner's  assignors  were  not  included  in  the  ad- 
vertisement, in  their  bid  or  contract,  as  is  required  by  law  in  such 
cases.  The  court  below  awarded  the  peremptory  writ,  to  which 
judgment  the  treasurer  prosecutes  this  writ  of  error. 

There  is  no  charge  in  these  pleadings  of  fraudulent  conduct  on 
the  part  of  the  secretary  of  state  in  advertising  for  bids,  or  of 
fraud  in  the  bid  itself,  or  in  the  auditing  of  the  account.  The 
sole  defense  is  that  some  of  the  articles  furnished  and  received 
and  used  by  the  state  were  not  embraced  in  the  advertisement,  or 
included  in  the  bid  of  petitioner's  assignors,  or  covered  by  their 
contract,  but  were  purchased  by  the  secretary  of  state  in  the  open 
market. 

This  is  conceded  by  the  petitioner,  and  upon  this  fact  the  claim 
is  made,  on  the  one  side,  that  this  purchase  was  without  authority 
of  law,  and  ultra  vires  the  secretary  of  state,  while  upon  the  other 
side  the  contention  is  that  he  had  the  implied  power  to  make  this 
purchase. 

The  parties  agree  that  the  warrant  does  not  possess  the  quali- 
ties of  negotiable  paper,  but  is  open  to  the  same  defenses  as  though 
the  proceeding  were  to  compel  the  auditor  to  allow  the  account  and 
draw  his  warrant  therefor.  It  is  also  agreed  that  if  any  part  of 
the  consideration  is  illegal,  the  warrant  is  void. 

The  rule  is  fundamental  that  ''in  cases  of  public  agents,  the 
government,  or  other  public  authority,  is  not  bound,  unless  it  mani- 
festly appears  that  the  agent  J^  acting  within  the  scope  of  his  au- 
thority, or  he  is  held  out  as  naving  authority  to  do  th^  act." 
Story  on  Agency  (8th  ed.)  see.  307a;  Mechem  on  Public  Officers, 


364  THE  EXERCISE  OP  OPFICIAI.  AUTHORITY. 

sec.  834 ;  Whiteside  et  al  v.  United  States  93  U.  S.  247 ;  Hawkins 
V.  United  States,  96  U.  S.  689 ;  Durango  v.  Pennington,  8  Colo.  257 ; 
Sullivan  v.  City  of  Leadville,  11  Colo.  483. 

As  expressed  in  another  form,  it  is  said:  "Every  person  who 
seeks  to  obtain,  through  his  dealings  with  the  office,  the  obliga- 
tion of  the  public,  must,  at  his  peril,  ascertain  that  the  proposed 
act  is  within  the  scope  of  the  authority  which  the  law  has  con- 
ferred upon  the  officer."  Mechem  on  Public  Officers,  sec.  829  et 
seq.,  citing  The  Floyd  Acceptances,  7  "Wall  666  and  other  cases. 

It  follows  that  the  power  to  reject  bids,  or  the  duty  to  supply 
the  departments  of  state  with  articles  necessary  for  their  use, 
which  this  act  contains,  does  not  carry  with  it,  nor  do  both  com- 
bined carry  by  implication,  the  power  to  disregard  both  the  stat- 
ute and  the  constitution,  or  confer  the  power  to  go  into  the  open 
market  and  buy.  The  duty  to  secure  these  things  might,  by  im- 
plication, give  authority  to  buy  in  any  reasonable  way,  were  it 
not  that  this  power  is  otherwise  limited  by  the  constitution  and 
the  statute ;  and  this  method,  being  the  essential  thing  to  protect  the 
state,  must  be  held  to  be  exclusive  and  mandatory.  The  various 
other  arguments  adduced  in  support  of  the  contrary  rule  do  not 
address  themselves  to  us  with  any  degree  of  force. 

For  the  foregoing  reasons  the  judgment  of  the  district  court 

is  reversed  and  the  cause  remanded  with  directions  to  dismiss 

the  proceeding. 

Reversed. 

But  the  exercise  of  discretionary  duties  may  not  be  controlled  by 
mandamus.  State  v.  Whitesldes,  30S.  C.  579,  and  State  v.  Wilson,  123  Ala. 
259,  infra.  As  to  the  liability  for  negligence  in  the  performance  of  minis- 
terial and  discretionary  duties  respectively,  see  Robinson  v.  Rohr,  78 
Wis.  436,  and  Goodwin  v.  Guild,  94  Tenn.  486  infra. 


STATE  V.  PATERSON. 

Supreme  Court  of  New  Jersey.     February,  1870. 
34  New  Jersey  Law,  163. 

ScuDDER,  J.  The  board  of  aldermen  of  the  city  of  Paterson, 
on  June  28th,  1869,  passed  the  following  resolution,  viz.:  "Where- 
as, the  city  charter  does  empower  the  mayor  and  aldermen  of  the 


STATE  V.  PATERSON.  365 

city  of  Paterson  to  purchase  grounds  whereon  to  build  a  public 
market;  therefore,  be  it 

"Resolved,  That  the  mayor  and  aldermen  of  the  city  of  Paterson, 
deeming  it  right  and  expedient  that  the  city  should  own  a  public 
market,  this  board  do  now,  in  accordance  with  the  one  hundred 
and  seventy-fifth  section,  title  ten,  of  the  city  charter,  appoint 
Philip  Kafferty,  William  G.  Watson,  and  George  Christie,  com- 
missioners, to  proceed  in  the  premises  according  to  law,  and  pur- 
chase a  site  and  build  a  public  market  thereon." 

It  is  admitted  for  the  purpose  of  this  case,  although  the  return 
is  not  complete,  that  the  resolution  was  regularly  passed  and  ap- 
proved according  to  the  requirements  of  the  charter. 

The  prosecutor,  Charles  Danforth,  a  citizen,  property  owner, 
and  tax-payer  of  Paterson  has,  by  certiorari  brought  this  resolu- 
tion into  this  court  to  determine  its  legality. 

Waiving  for  the  present  the  consideration  of  several  preliminary 
questions  raised  on  the  argument,  let  us  consider  the  proper  legal 
construction  of  the  one  hundred  and  seventy-fifth  section  of  the 
charter  referred  to  in  the  resolution,  and  afterwards  the  form  of 
the  resolution  itself. 

This  section  {Laws  1869,  p.  769,)  enacts  "that  for  the  purpose 
of  carrying  out  and  effecting  the  purposes  and  objects  provided 
for  and  authorized  in  the  one  hundred  and  sixty-fifth,  one  hun- 
dred and  sixty-seventh,  one  hundred  and  seventy-first,  one  hun- 
dred and  seventy-second,  and  one  hundred  and  severity-third  sec- 
tions of  this  act,  the  mayor  and  aldermen  of  said  city  are  hereby 
authorized  and  directed  whenever  they  shall  decide  to  carry  out 
and  effect  such  purposes  and  objects,  or  any  of  them,  to  appoint 
three  discreet  persons,  residents  and  citizens  of  said  city,  as  com- 
missioners, who  shall  have  full  power  and  authority  on  behalf  of, 
and  in  the  name  of  said  mayor  and  aldermen,  to  make  all  contracts 
and  purchases,  and  to  transact  and  perform  all  business  neces- 
sary in  relation  thereto,  or  connected  with  any  of  such  purposes 
and  objects;  and  the  acts  and  contracts  so  made  by  said  com- 
missioners and  by  them  reported  to  the  board  of  aldermen,  shall 
be  binding  upon  such  mayor  and  aldermen,  and  upon  the  said 
city,  as  fully  and  completely  as  if  they  had  been  made  directly 

by  said  mayor  and  aldermen;" 

The  sections  referred  to  in  this  one  hundred  and  seventy-fifth 
section  all  relate  to  certain  public  improvements,  viz.,  section  one 
hundred  and  sixty-five,  to  public  parks;  section  one  hundred  and 
^ixty-seven,  to  a  city  hall  arid  other  buildings,  and  public  mar- 


366  THE  EXERCISE  OP  OPPICTAL  AUTHORITT. 

kets;  section  one  hundred  and  seventy-one,  to  water  works;  and 
sections  one  hundred  and  seventy-two  and  one  hundred  and  sev- 
enty-three, to  gas  works. 

In  the  enumeration  of  the  several  powers  conferred  on  the  board 
of  aldermen,  found  in  the  twenty-third  section  of  the  charter,  un- 
der sub-division  seventeen,  it  will  be  seen  that  they  haVe  the  gen- 
eral power  to  "erect,  establish  and  regulate  public  markets." 

In  the  one  hundred  and  sixty-seventh  section  it  is  enacted  that 
the  wxiyor  and  aldermen  of  the  city  of  Paterson  are  authorized  to 
purchase  a  suitable  site  or  sites,  and  erect  thereon  one  or  more 
public  markets.  This  legislative  power  and  discretion  are  to  be 
exercised  through  the  board  of  aldermen,  as  we  have  already  seen 
in  the  twenty-third  section.  They  are  to  purchase  a  suitable  site 
or  sites,  and  erect  thereon  one  or  more  public  markets,  and  to  em- 
ploy suitable  architects,  engineers,  and  other  persons  necessary  to 
accomplish  these  purposes. 

They  are  herein  required  to  use  judgment  and  discretion  in  de- 
termining the  suitableness  of  the  site,  and  also  of  the  architect, 
engineer,  and  other  persons  employed  to  accomplish  the  purpose. 
This  they  must  use,  and  cannot  delegate  to  others  without  express 
legislative  authority.  Lyon  v.  Jerome,  26  Wend,  485;  New  York 
V.  City  of  New  York,  3  Duer,  119, 131. 

How  far  is  this  authority  given  in  the  one  hundred  and  seventy- 
fifth  section? 

The  mayor  and  the  aldermen  are  therein  authorized  and  directed, 
whenever  they  shall  decide  to  carry  out  and  effect  these  purposes 
and  objects,  or  any  of  them,  to  appoint  three  discreet  persons,  who 
shall  have  power  and  authority,  on  behalf  of  and  in  the  name  of 
said  mayor  and  aldermen,  to  make  all  contracts  and  purchases, 
and  to  transact  all  business  necessary  in  relation  thereto,  &c.,  and 
their  acts  and  contracts  shall  be  binding  on  the  corporation,  as  if 
made  directly  by  the  mayor  and  aldermen. 

There  is  here,  in  my  opinion,  no  necessary  conflict  of  authority 
or  of  action.  The  board  of  aldermen  must  select  a  suitable  site; 
they  must  select  suitable  architects  and  engineers.  When  the  lot, 
and  the  plan  and  specifications  are  thus  determined,  then  the  board 
of  aldermen  are  directed  to  appoint  three  commissioners,  with  cer- 
tain qualifications,  to  contract  and  purchase,  and  to  carry  out  the 
objects  thus  defined  and  settled.  This  construction,  it  appears  to 
me,  harmonizes  the  two  sections.  The  commissioners  become  the 
ministerial  officers  and  agents  of  the  corporation  to  carry  out  its 


STATE  V.  PATERSON.  367 

resolves  for  a  specified  work.  Upon  report  by  them  made,  their  con- 
tracts and  purchases  become  binding  on  the  city,  and  the  board 
provides  the  funds  for  payment,  according  to  the  terms  of  the 
charter. 

Having  thus  considered  the  one  hundred  and  seventy-fifth  sec- 
tion in  its  relation  to  the  one  hundred  and  sixty-seventh  section  and 
the  general  terms  of  the  charter,  it  remains  to  consider  the  form  of 
the  resolution  itself. 

It  is  manifest  that  the  mayor  and  aldermen  of  Paterson  have  not 
selected  a  suitable  site  or  sites,  and  that  they  have  not  employed 
suitable  architects,  and  prepared  plans  and  specifications  for  the 
proposed  market,  but  in  this  resolution  they  have  delegated  these 
important  duties  to  the  commissioners.  This  they  cannot  do,  and 
the  resolution  is  fatally  defective  in  these  particulars.  They  are 
appointed  in  general  terms  to  proceed  according  to  law,  and  pur- 
chase a  site  and  build  a  public  market  thereon.  The  whole  subject 
is  therefore  left  to  their  discretion;  after  determining  that  they 
deem  it  right  and  expedient  that  the  city  should  own  a  market,  and 
appointing  three  commissioners  to  purchase  land  and  build,  the 
mayor  and  aldermen  have  supposed  their  duties  were  fulfilled,  until 
it  should  become  necessary  to  provide  funds  for  the  payment  of  the 
contracts  and  purchases  of  the  commissioners.  In  this  they  have 
erred. 

The  power  and  discretion  given  to  them  to  appoint  these  com- 
missioners is  in  derogation  of  their  general  authority  to  control 
and  manage  the  affairs  of  the  city,  and  must  be  construed  strictly. 
It  must  appear  that  in  exercising  this  authority  the  board  of  alder- 
men have  not  gone  beyond  the  power  conferred.  It  is  necessary 
that  courts  should  watch  with  the  most  jealous  care  the  appoint- 
ment of  any  such  commission,  however  good  may  be  the  character 
of  the  persons  appointed,  where  the  authority  conferred  is  so  great, 
and  some  of  the  ordinary  securities  are  omitted.  The  charge  will 
be  laid  heavily  upon  the  property  of  the  citizens  for  the  payment 
of  the  proposed  improvements,  and  it  must  appear  that  every  re- 
quirement has  been  observed. 

The  resolution  is  not  within  the  terms  of  the  charter,  in  the 
particulars  above  stated,  and  is  therefore  null  and  void. 

Bedle  and  Dalrimple,  Justices,  concurred. 


368  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

4.    Majority  Necessary  for  Valid  Action. 

RUSHVILLE  GAS  COMPANY  V.  CITY  OP  RUSHVILLB. 

Supreme  Court  of  Judicature  of  Indiana.    November,  1889. 
121  Indiana  306. 

Elliott,  J.  The  mayor  of  the  city  of  Rushville  appointed  a 
committee,  composed  of  the  members  of  the  common  council,  to 
investigate  and  report  upon  the  question  of  the  expediency  of  buy- 
ing an  electric  light  plant  and  machinery.  The  committee,  in  due 
time,  reported  to  the  common  council  in  favor  of  making  the  pur- 
chase. On  the  3rd  day  of  April,  1889,  action  was  taken  on  the 
report  at  a  regular  meeting,  at  which  all  of  the  members  of  the 
common  council  were  present,  and  the  following  resolution  was 
introduced : 

^'Resolved,  That  the  report  of  the  special  committee,  relating  to 
lighting  the  city,  be  adopted,  and  that  the  officers  therein  named 
be  instructed  to  sign  the  contract  named  therein." 

Three  of  the  six  members  composing  the  common  council  voted  in 
favor  of  the  resolution,  but  the  other  three  members,  although 
present,  declined  to  vote,  and  the  mayor  declared  that  it  was 
adopted.  By  virtue  of  this  resolution  the  city  is  about  to  enter 
into  a  contract  with  the  companies  named  in  the  report  for  the 
purchase  of  an  electric  light  plant  and  the  power  to  run  it,  for  which 
the  city  is  to  pay  the  sum  of  ten  thousand  one  hundred  and  fifty 
dollars.  Acting  under  the  resolution,  the  Edison  Manufactur- 
ing Company  has  put  up  poles,  strung  wires  on  them,  and  placed 
in  operation  a  system  of  electric  lights,  and  the  city  will  buy  the 
plant  and  machinery  unless  enjoined.  The  city  has  contracted 
with  the  Buckeye  Engine  Company  for  a  steam  engine  and  appli- 
ances to  be  used  in  operating  the  machinery  of  the  Edison  company 
plant,  at  a  cost  of  two  thousand  two  hundred  dollars.  Unless  en- 
joined the  city  will  issue  bonds  to  pay  for  the  plant,  machinery, 
engine  and  appliances. 

The  meeting  at  which  the  resolution  was  adopted  was  a  regular 
one,  attended  by  all  the  members  of  the  common  council,  and  all 
who  voted  at  all  voted  in  favor  of  the  resolution.  The  question, 
therefore,  is:  Does  the  fact  that  three  of  the  members  present 
declined  to  vote  authorize  the  conclusion  that  the  resolution  was 
not  legally  adopted  ?    In  our  judgment  it  does  not. 


RUSHVILLE   GAS   CO.    V.    CITY  OP  RUSHVILLE. 

The  rule  is  that,  if  there  is  a  quorum  present  and  the  majority 
of  a  quorum  vote  in  favor  of  a  measure,  it  will  prevail,  although  an 
equal  number  should  refrain  from  voting.  It  is  not  the  majority 
of  the  whole  number  of  members  present  that  is  required;  all  that 
is  requisite  is  a  majority  of  the  number  of  members  required  to 
constitute  a  quorum.  If  there  had  been  four  members  of  the  com- 
mon council  present,  and  three  had  voted  for  the  resolution  and  one 
had  voted  against  it,  or  had  not  voted  at  all,  no  one  would  hesitate 
to  affirm  that  the  resolution  was  duly  passed,  and  it  can  make  no 
difference  whether  four  or  si^  members  are  present,  since  it  is 
alwaj's  the  vote  of  the  majority  of  the  quorum  that  is  effective. 
The  mere  presence  of  the  inactive  members  does  not  impair  the  right 
of  the  majority  of  the  quorum  to  proceed  with  the  business  of  the 
body.  If  members  present  desire  to  defeat  a  measure  they  must 
vote  against  it,  for  inaction  will  not  accomplish  their  purpose. 
Their  silence  is  acquiescence,  rather  than  opposition.  Their  refusal 
to  vote  is,  a  declaration  that  they  consent  that  the  majority  of  the 
quorum  may  a«t  for  the  body  of  which  they  are  members. 

We  cannot  agree  with  appellant's  counsel  in  the  construction 
which  they  place  upon  the  words  of  Judge  Dillon  found  in  section 
279  of  his  work  on  Municipal  Corporations,  for,  as  we  read  what 
the  author  says,  it  is  directly  against  the  appellant.  What  is  said 
by  Judge  Dillon  is  this:  **So,  if  a  board  of  village  trustees  con- 
sists of  five  members,  and  all  or  four  are  present,  two  can  do  no 
valid  act,  even  though  the  others  are  disqualified  by  interest  from 
voting,  and,  therefore,  omit  or  decline  to  vote ;  their  assenting  to  the 
measure  voted  for  by  the  two  will  not  make  it  valid.  If  three  only 
were  present  they  could  constitute  a  quorum,  then  the  votes  of  two, 
being  a  majority  of  the  quorum,  would  be  valid,  certainly  so  where 
the  three  are  all  competent  to  act."  In  the  first  sentence  Judge 
Dillon  refers  to  cases  where  there  is  not  a  quorum  present,  because 
there  is  not  the  requisite  number  of  qualified  members  in  attend- 
ance. He  is  speaking  of  the  effect  of  the  presence  of  disqualified 
persons  in  that  sentence,  not  of  the  effect  of  a  vote  of  the  majority 
of  a  quorum  composed  of  qualified  members  of  the  body.  In  the 
last  sentence  he  speaks  of  a  case  where  there  is  a  qualified  quorum 
present,  and  he  instances  such  a  case  as  we  have  here,  for  here  four 
would  be  a  quorum,  and,  according  to  this  rule,  three  of  the  four 
could  adopt  a  measure  if  there  were  no  opposing  votes.  The  case 
referred  to  by  the  author  in  support  of  the  proposition  embodied 
in  the  first  sentence  quoted  is  that  of  Coles  v.  Triistees,  10  Wend. 

24 


370  THE  EXERCISE  OP  OFFICIAL  AUTHORITY, 

659.  In  that  case  three  of  five  town  trustees  were  disqualified  from 
voting,  and  there  was,  of  course,  no  quorum  of  competent  members, 
and  consequently  no  capacity  to  act.  The  court  said:  "The  act 
requires  three  out  of  five,  or  a  majority,  to  make  a  quorum.  If 
there  were  but  three  present,  then  the  votes  of  two,  being  a  ma- 
jority, would  be  valid.  Here  were  five  trustees,  three  of  whom 
were  incompetent  to  vote  by  the  act ;  and  being  so,  it  seems  to  me, 
so  far  as  the  vote  was  concerned,  they  were  not  trustees  for  any 
purpose."  It  is  obvious,  therefore,  that  no  such  case  was  before 
the  court  as  that  now  before  us,  for  here  all  the  members  were 
present,  and  the  measure  was  adopted  by  a  majority  vote  of  the 
quorum. 

It  would  not  benefit  the  appellant  if  we  should  hold  that  the 
councilmen  present  and  not  voting  did,  in  effect,  oppose  the  resolu- 
tion and  certainly  the  utmost  that  can,  with  the  faintest  tinge  of 
plausibility,  be  claimed,  is  that  their  votes  must  be  counted  against 
the  resolution.  It  is  inconceivable  that  their  silence  should  be 
allotted  greater  force  than  their  active  opposition  would  have  been 
entitled  to  have  assigned  it  had  it  been  manifested.  If  we  should 
assume  that  their  votes  are  to  be  counted  against  the  resolution,  then 
the  mayor  had  the  casting  vote,  and,  by  declaring  the  resolution 
adopted,  he  gave  it  in  favor  of  the  measure.  This  is  so  expressly 
decided  in  Mayor  v.  Orne,  79  Maine  78.  But  we  think  that  the 
law  is  as  stated  by  Willcock,  and  that  the  members  present  and  not 
voting  assented  to  the  adoption  of  the  resolution. 

Judgment  affirmed. 


McCORTLE  V.  BATES. 

Supreme  Court  of  Ohio.    December,  1876. 
29  Ohio  St.  419. 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court 
for  Noble  county. 

The  original  action  was  brought  by  the  plaintiffs  against  Bethel 
Bates,  Andrew  J.  Moore,  Josephus  Groves,  E.  H.  Craft  and  I.  Q. 
Morris,  in  the  Court  of  Common  Pleas  of  Noble  county. 

The  following  are  the  facts,  so  far  as  they  are  material  to  be 
noticed : 


m'cortle  v.  bates.  371 

On  the  13th  day  of  October,  1870,  the  defendants  were  members 
of  the  board  of  education  of  Senaca  township,  in  said  comity,  and 
on  that  day  they  entered  into  an  agreement  in  writing  with  one 
}J.  S.  Wachob,  of  which  the  following  is  a  copy : 

"Mr.  J.  S.  Wachob  is  hereby  requested  to  forward  to  Herman 
Suabidissen,  township  clerk,  the  following  list  of  articles,  viz.: 
Seven  excelsior  globes,  seven  inches  in  diameter,  mounted  as  per 
cut  herewith,  provided  a  majority  of  the  members  of  the  board  of 
education  of  Seneca  township,  Noble  county,  Ohio,  sign  this  order; 
and  we  hereby  agree  to  pay  for  the  same  on  or  before  the  first  day; 
of  September,  1871,  with  interest,  at  the  price  hereto  annexed. 

* '  The  township  clerk  is  hereby  directed  to  issue  an  order  on  the 
township  in  the  payment  for  the  same  in  favor  of  said  Wachob, 
payable  as  above  specified,  and  he  is  further  requested  to  call  a 
special  meeting  of  said  board  within  days,  at  which  meeting  we 
agree  with  each  other  that  ^e  will  ratify  this  contract. 

"Bethel  Bates, 
"Andrew  J.  Moore, 
"JosEPHUs  Groves, 
"E.   H.   Craft, 
"I.   Q.   Morris. 
"October  13, 1870." 

Then  followed  a  long  list  of  school  apparatus  with  prices  an- 
nexed, the  price  annexed  to  the  globes  contracted  for  being  $15 
each.  The  globes  were  delivered  to  the  township  clerk,  who  drew 
an  order  on  the  treasury  of  the  township,  as  directed,  for  $105,  in 
favor  of  Wachob,  payable  September  1,  1871.  This  order  and 
Wachob 's  interest  in  the  above-recited  agreement  were  assigned  by 
him  to  the  plaintiff,  after  which  the  board  of  education,  acting  in 
its  corporate  capacity,  repudiated  the  contract,  and  the  treasurer 
refused  to  pay  the  order;  whereupon  the  plaintiff  brought  his  ac- 
tion against  the  members  of  the  board  signing  his  contract  to  re- 
cover upon  their  alleged  individual  promise  to  pay  for  the  globes. 
The  defendants  demurred  to  a  petition  stating  the  foregoing  facts, 
upon  the  ground  that  the  facts  stated  were  insufficient  to  constitute 
a  cause  of  action.  The  demurrer  was  sustained  and  the  petition 
dismissed.  On  error,  the  district  court  affirmed  the  judgment  of 
the  common  pleas.  Leave  is  here  asked  to  file  a  petition  to  reverse 
both  judgments. 

BoYNTON,  J.  The  contract  sued  upon  having  none  of  the  at- 
tributes or  immunities  of  commercial  paper,  the  plaintiff,  by  the  as- 


372  THE  EXERCISE  OP  OFFICIAL  AUTHOEITY. 

signment  by  Wachob  of  his  claim  against  the  defendants,  secured 
and  succeeded  to  them  such  rights,  and  such  only,  as  Wachob 
possessed  at  the  time  of  the  transfer. 

Such  defenses  as  would  have  been  allowed  had  he  retained  the 
claim  and  brought  suit  upon  it  himself,  are  now  admissible  against 
the  plaintiff.  Assuming,  without  deciding,  that  by  the  understand- 
ing of  the  parties  to  the  agreement  the  defendants  incurred  a  per- 
sonal liability,  it  is  quite  clear  that  there  was  no  error  in  the  action 
of  the  common  pleas  in  sustaining  the  demurrer  and  dismissing  the 
petition. 

The  request  to  Wachob  to  forward  the  globes,  provided  a  ma- 
jority of  the  board  signed  the  order :  the  agreement  to  pay  for  them 
on  or  before  September  1, 1871 ;  the  direction  to  the  township  clerk 
to  *' issue"  an  order  on  the  township  in  favor  of  Wachob  for  the 
amount  agreed  upon ;  the  request  to  the  clerk  to  call  a  special  meet- 
ing of  the  board  for  action  upon  the  matter,  and  the  agreements 
among  the  members  signing  the  contract  to  ratify  the  same  at  such 
meeting,  were  all  elements  of  the  same  transaction.  The  paper 
upon  which  they  were  written  contained  the  price-list  of  school 
apparatus  belonging  to  Wachob,  and  it  was  delivered  to  him  after 
it  was  signed  by  the  defendants.  He  was  not  only  cognizant  of 
its  contents,  but  a  party  to  its  stipulations.  The  promise  or  agree- 
ment of  the  members  of  the  board  inter  sese,  to  ratify  the  contract 
at  the  meeting  to  be  called,  was  to  the  knowledge  of  Wachob  a  ma- 
terial inducement  to  the  agreement  to  purchase,  and  made  for  his 
benefit.  He  accepted  an  order  drawn  on  the  treasurer  in  anticipa- 
tion of  such  ratification.  It  was  an  agreement  to  avoid  or  evade  per- 
sonal liability,  if  any  was  incurred,  by  shifting  it  to  the  township. 
It  is  not  unlike,  in  its  legal  aspect,  a  promise  or  agreement  by  a 
legislator,  or  member  of  a  city  or  town  council,  to  act  and  vote  upon 
a  pending  measure,  in  a  certain  way,  for  a  consideration  paid. 
Such  promise  or  agreement  was  clearly  contrary  to  public  policy, 
and  therefore  illegal  and  void.  Its  effect  is  to  vitiate  the  whole 
instrument. 

The  board  is  constituted,  by  statute,  a  body  politic  and  corporate 
in  law,  and  as  such  is  invested  with  certain  corporate  powers,  and 
charged  with  the  performance  of  certain  public  duties.  These  pow- 
ers are  to  be  exercised,  and  these  duties  discharged,  in  the  mode 
prescribed  by  law.  The  members  composing  the  board  have  no 
power  to  act  as  a  board  except  when  together  in  session.  They  then 
act  as  a  body  or  unit.  The  statute  requires  the  clerk  to  record,  in 
a  book  to  be  provided  for  that  purpose,  all  their  oflBcial  proceed- 


m'cortle  v.  bates.  373 

ings.  They  have,  in  their  corporate  capacity,  the  title,  care  and 
custody  of  all  school  property  whatever  within  their  jurisdiction 
and  are  invested  with  full  power  to  control  the  same  in  such  man- 
ner as  they  think  will  best  subserve  the  interest  of  the  common 
schools  and  the  cause  of  education.  They  are  required  to  prescribe 
rules  and  regulations  for  the  government  of  all  the  common  schools 
within  the  township.  Clothed  with  such  powers  and  charged  with 
such  duties  and  such  responsibilities,  it  will  not  be  permitted  to 
them  to  make  any  agreement  among  themselves,  or  with  others,  by 
which  their  public  action  is  to  be,  or  may  be  restrained  or  em- 
barrassed, or  its  freedom  in  any  wise  affected  or  impaired.  The 
public,  for  whom  they  act,  have  the  right  to  their  best  judgment 
after  free  and  full  discussion  and  consultation  among  themselves 
of,  and  upon,  the  public  matters  intrusted  to  them,  in  the  session 
provided  by  the  statute.  This  cannot  be,  when  the  members  by 
pre-engagement,  are  under  contract  to  pursue  a  certain  line  of 
argument  or  actioii,  whether  the  same  will  be  conducive  to  the 
public  good  or  not.  It  is  one  of  the  oldest  rules  of  the  common 
law,  that  contracts  contrary  to  sound  morals,  or  against  public 
policy,  will  not  be  enforced  by  courts  of  justice — ex  facto  illicito 
non  oritur  actio;  and  the  court  will  not  enter  on  the  inquiry 
whether  such  contract  would,  or  would  not,  in  a  given  case,  be 
injurious  in  its  consequences  if  enforced.  It  being  against  the 
public  interest  to  enforce  it,  the  law  refuses  to  recognize  its  claim 
to  validity. 

Leave  refused. 


II.     Powers  of  Officers. 
A.    The  Power  of  Ordinance. 

1.    Basis  of  Power.  i 

MORRIS  V.  CITY  OF  COLUMBUS, 

Supreme  Court  of  Georgia.    February,  1898. 

102  Ga.  792. 
Cobb,  J, 

All  of  the  plaintiffs  in  error  attack  the  constitutionality  of  the 
act  of  the  General  Assembly  conferring  authority  upon  the  city 
council  of  Columbus  to  require  vaccination  in  certain  cases. 

The  General  Assembly  conferred  this  authority  upon  the  city  of 


374  THE  EXERCISE  OF  OFFICIAL  AUTHORITY. 

Columbus  in  the  exercise  of  its  police  power We 

cannot  see  what  there  is  in  the  present  case  to  differentiate  it  in 
principle  from  a  number  of  other  cases  in  which  private  rights 
have  been  subordinated  to  the  health  and  comfort  of  the  public. 
Danger  to  the  public  health  has  always  been  regarded  as  a  suffi- 
cient ground  for  the  exercise  of  police  power  in  restraint  of  a 

person's  liberty So  far  as  we  are  aware  no  court 

has  ever  been  called  upon  to  pass  on  this  exact  question,  but  there 
are  a  few  decisions  in  which  the  subject  of  vaccination  is  discussed 
and  these  show  the  trend  of  the  judicial  mind  on  the  Subject.  In 
the  Matter  of  Smith,  40  N.  E.  497,  was  a  case  in  which  Smith  and 
another  were  detained  in  quarantine  under  a  resolution  of  the 
municipal  authorities  of  the  city  of  Brooklyn,  declaring  that 
**  whenever  any  person  in  said  city  shall  refuse  to  be  vaccinated, 
such  person  shall  immediately  be  quarantined,  and  detained  in 
quarantine  until  he  consents  to  such  vaccination."  The  Court  of 
Appeals  of  New  York  reversed  the  Supreme  Court,  General  Term, 
for  refusing  to  order  the  release  of  the  persons  detained.  But  the 
decision  was  put  upon  the  ground  that  the  power  conferred  upon 
the  local  legislature  of  Brooklyn  was  not  sufficiently  broad  to  cover 
the  case  of  the  appellants.  In  discussing  the  case,  Gray,  'J.,  says: 
**I  think  no  one  will  dispute  the  right  of  the  legislature  to  enact 
such  measures  as  will  protect  all  persons  from  the  impending 
calamity  of  a  pestilence,  and  to  vest  in  local  authorities  such  com- 
prehensive powers  as  will  enable  them  to  act  competently  and 
effectively.  The  question  here  is  not  whether  the  legislature  had 
the  power  to  enact  the  provisions  of  section  24  of  the  health  law, 
but  whether  the  respondent  has  shown  that  a  state  of  facts  existed 
warranting  the  exercise  of  the  extraordinary  authority  conferred 
upon  him."  In  Potts  v.  Breen,  47  N,  E.  Rep.  81,  it  was  held  that 
a  school  board  could  not  make  vaccination  a  condition  precedent 
to  admission  to  the  public  schools,  when  smallpox  did  not  exist  in 
the  community,  and  when  there  was  no  reason  for  apprehending 
an  epidemic  of  that  disease,  in  the  absence  of  express  authority 
from  the  legislature.  An  examination  of  the  opinion  of  the  court 
shows,  that  while  the  question  was  not  presented,  they  were  clearly 
of  the  opinion  that  compulsory  vaccination  would  be  allowable  in 
certain  cases  when  express  legislative  authority  was  given.  The 
court  uses  this  language:  "It  is  a  matter  of  common  knowledge 
that  the  number  of  those  who  seriously  object  to  vaccination  is  by 
no  means  small,  and  they  cannot,  except  when  necessary  far  the 
public  health  and  in  conformity  to  law  (italics  ours),  be  deprived 


MORRIS  V.  CITY  OP  COLUMBUS.  375 

of  their  right  to  protect  themselves  and  those  under  their  control 
from  an  invasion  of  their  liberties  by  a  practically  compulsory 
inoculation  of  their  bodies  with  a  virus  of  any  description,  how- 
ever meritorious  it  might  be."  There  are  several  cases  holding 
that  acts  of  the  legislature  authorizing  school  boards  to  require 
vaccination  as  a  condition  precedent  to  admission  to  the  public 
schools  is  not  an  invasion  of  any  constitutional  right  of  the  pupil. 
Duffield  V.  Williamsport,  162  Pa.  476,  25  L.  R.  A.  152;  Bissell  v. 
Davidson,  32  Atl.  (Conn.)  348;  Abeel  v.  Clark,  24  Pac.  (Cal.)  383; 
In  re  Rebnack,  62  Mo.  App.  8;  In  re  Walters,  32  N.  Y.  Supp.  322. 
Pupils  of  schools  constitute  a  general  class  of  persons.  If  the 
legislature  can  authorize  the  imposition  of  this  condition  upon  one 
class,  why  not  upon  another? It  seems  to  us,  there- 
fore, to  be  a  necessary  conclusion  from  the  cases  cited  supra,  hold- 
ing a  regulation  requiring  a  vaccination  of  pupils  as  a  condition 
precedent  to  admission  in  the  public  schools  reasonable  and  con- 
stitutional, that  the  act  now  under  consideration  is  a  valid  exercise 
of  the  police  power.  Under  this  view  the  decision  in  the  present 
case  is  supported  by  direct  authority.  But  however  this  may  be,  we 
hold  that  the  legislature  has  power  to  pass  an  act  compelling  vac- 
cination, and  that  it  may  delegate  this  authority  to  a  municipal 
corporation.  But  while  this  is  true,  municipal  corporations  must 
have  express  authority  from  the  legislature,  as  no  such  power  will 
ever  arise  by  implication.  State  v.  Burdge,  70  N.  W.  Rep.  347; 
Potts  v.  Breen,  supra.  In  no  proper  sense  can  the  act  of  the 
General  Assembly  attacked  in  this  case  be  said  to  deprive  the 
plaintiffs  in  error  of  any  right  without  due  process  of  law,  or  to 
deny  to  them  the  equal  protection  of  the  laws.  It  follows,  there- 
fore, that  the  superior  court  did  not  err  in  refusing  to  sustain  the 
petitions  for  certiorari. 

Judgment  affirmed.    All  the  Justices  concurring. 

See  also  Boske  v.  Comingore,  177  U.  S.  459;  Blue  v.  Beach,  155  Ind. 
121,  In  re  KoUock.  165  U.  S.  526;  Dunlap  v.  United  States,  173  U.  S.  65, 
for  power  of  regulation  of  heads  of  departments. 


876  THE  EXERCISE  OF  OFFICIAL  AUTHORITY. 


,   CITY  OF  EVANSVILLE  V.  MILLER. 

Supreme  Court  of  Indiana.     February  26,  1897. 
146  Ind.  613. 

Jordan,  C.  J.  This  action  was  instituted  by  appellee  to  prevent 
the  collection  of  certain  assessments,  levied  by  the  board  of  public 
works  of  the  city  of  Evansville  on  certain  real  estate  owned  by  ap- 
pellee and  situated  within  the  city.  The  theory  of  the  complaint 
is  that  this  assessment  of  $199.  is  void  by  reason  of  the  invalidity 
in  part  of  an  ordinance  under  which  the  city  undertook  to  levy 
the  said  assessment.  A  trial  resulted  in  a  finding  by  the  court  in 
favor  of  appellee,  and  a  judgment  was  awarded  cancelling  the 
assessment  and  adjudging  void  the  lien  claimed  thereunder  by  the 
city. 

It  is  clear,  we  think,  that  the  city  of  Evansville,  through  her 
duly  constituted  authorities,  in  ordering  the  removal  of  this  par- 
tially destroyed  building,  and  in  assessing  the  expense  of  such  work 
on  appellee's  real  estate,  proceeded  under  that  part  of  section  one 
of  the  ordinance  which  declares  "that  any  building,  &c.  that  shall 
be  partially  destroyed  by  fire,  &c.,  and  suffered  by  the  owner  to 
remain  in  such  condition  after  being  notified,  &c.,  to  remove,  re- 
pair, &c.,  shall  constitute  a  nuisance."  The  controlling  question, 
therefore,  for  our  decision  is  that  which  relates  to  the  validity  of 
this  portion  of  the  ordinance,  for,  as  this  is  the  basis  upon  which 
the  city's  proceedings  rest,  its  invalidity  must  necessarily  render 
them  inoperative  and  void.  Counsel  for  appellee  deny  that  the 
common  council  of  the  city  of  Evansville  has,  either  expressly  or 
impliedly,  the  power  to  declare  by  ordinance  that  a  building  par- 
tially destroyed  and  suffered  to  remain  in  that  condition,  shall,  by 
reason  of  such  facts  alone,  necessarily  constitute  a  nuisance.  It 
will  be  seen  that  the  ordinance  in  dispute  ordains  ' '  that  any  build- 
ing, &c.,  partially  destroyed  by  fire,  or  any  other  cause,  and  suf- 
fered to  remain  in  such  condition  after  notice  to  the  owner,  &c., 
shall  constitute  a  nuisance. ' '  The  latter  is  declared  to  exist  as  the 
result  of  these  naked  facts,  and  authority  is  given  to  the  depart- 
ment of  public  works  to  abate  such  declared  nuisance  at  the  ex- 
pense of  the  owner  of  the  property.  These  facts  alone  are  the  test. 
The  ordinance  erects  no  other  standard  by  which  the  supposed 
nuisance  is  to  be  measured  or  determined.  No  reference  or  regard 


CITY  OP  EVANSVILLE  V.  MILLER.  377 

whatever  is  had  as  to  the  condition,  character,  situation,  or  sur- 
roundings, which  might  tend  to  render  the  building  unsafe  in  any 
manner  to  the  public  or  a  detriment  to  the  health  or  convenience 
of  the  public.  There  is  an  entire  absence  of  facts  declared,  tending 
to  show  that  if  such  partially  destroyed  building  is  suffered  to 
remain  it  may  be  productive  of  annoyance  or  injury  to  the  public. 
That  such  a  building  may  become  a  nuisance  if  maintained  by 
reason  of  the  ruinous  and  weak  condition  of  its  walls  or  other 
parts,  thereby  rendering  them  liable  to  fall  and  do  injury  to  per- 
sons passing  by,  or  resulting  in  injury  to  an  adjoining  owner,  is 
a  well  established  legal  proposition.  It  is  said  by  an  eminent 
author,  that  such  a  building,  as  last  mentioned,  on  a  public  street  is 
a  public  nuisance  and  a  private  nuisance  to  those  owning  property 
adjacent  to  it.  Wood's  Law  of  Nuisances,  section  109.  It  is  evi- 
dent, however,  that  in  such  a  case  the  nuisance  would  not  consist 
alone  in  the  fact  that  the  building  was  one  that  had  been  partially 
destroyed,  but  in  its  being  maintained  in  its  unsafe  or  dangerous 
condition.  It  may,  however,  be  maintained  in  a  partially  destroyed 
condition,  and  yet  be  harmless  in  all  respects.  The  unsafe  condi- 
tion thereof  depending  on  the  extent  of  the  destruction,  and  an- 
other feature  to  be  considered  would  be  whether  it  was  remote  from 
a  public  street  or  passway.  But  the  ordinance  does  not  take  into 
account  any  of  these  facts  or  features,  but  expressly  condemns  and 
outlaws  as  a  nuisance  the  maintaining  of  any  partially  destroyed 
building  without  regard  to  its  character,  as  to  danger,  by  reason 
of  its  weak  condition,  or  location  or  surroundings.  By  section  23 
of  the  act  under  which  the  city  of  Evansville  is  operating,  its 
common  council  is  empowered  to  declare  what  shall  constitute  a 
nuisance,  and  to  require  its  abatement,  and  to  assess  the  expenses 
of  its  removal  against  the  person  causing  the  same  or  suffering  it 
to  exist.  Acts  1895,  p.  259.  But  the  rule  is  well  settled  that  a 
municipal  corporation,  although  empowered  by  law  to  declare  what 
shall  constitute  a  nuisance,  may  not  declare  that  to  be  one  which 
in  fact  is  not.  First  Nat.  Bank  v.  Sarils,  129  Ind.  201,  and  authori- 
ties there  cited;  Baumgartner  v.  Hasty,  110  Ind.  575;  Village  of 
Des  Plaines  v.  Poyer,  123  111.  348,  14  N.  E.  677 ;  City  of  Denver  v. 
Mullen,  7  Col.  345,  3  Pac.  693 ;  Everett  v.  City  of  Council  Bluffs, 
46  la.  66 ;  Yates  v.  Milwaukee,  10  Wall.  497 ;  Tiedman  Lim.  Police 
Powers,  section  122;  Wood's  Law  of  Nuisances,  sections  742,  743 
and  744;  Lippman  v.  City  of  South  Bend,  84  Ind.  276;  Dillon 
Munic.  Corp.,  section  374;  State  v.  Jersey  City,  29  N.  J.  L.  170; 
Beach  Pub.  Corp.  sections  1026,  1029  and  1031. 


378  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

We  think  it  is  clear,  under  the  authorities,  that  the  common 
council  by  the  ordinance  in  controversy,  attempted  to  declare  that 
a  nuisance  which  in  fact,  under  the  law,  cannot  be  so  considered, 
and  therefore  transcended  the  power  with  which  it  was  invested. 
As  asserted  by  the  authorities,  it  would  be  a  dangerous  doctrine 
and  fraught  with  much  evil  to  recognize  the  authority  of  a  muni- 
cipal legislature  to  declare  that  a  nuisance  which  its  own  caprice 
might  deem  proper  to  outlaw  as  such.  Even  though  such  power  is 
expressly  conferred  my  the  legislature,  it  is  utterly  inoperative, 
unless  the  thing  so  declared  to  be  a  nuisance  is  one  in  fact,  or  was 
created  or  erected  after  the  adoption  of  the  ordinance  and  in  defi- 
ance thereof.    Wood's  Law  of  Nuisances,  section  744. 

What  the  legislature  cannot  do  directly  in  this  respect  it  cannot 
authorize  a  municipal  corporation  to  do.  Without  further  extend- 
ing this  opinion,  we  are,  under  the  authorities  cited,  constrained  to 
hold  that  the  part  of  section  one  of  the  ordinance,  as  indicated  by 
the  italics,  is  void  for  the  reasons  herein  stated,  and  the  proceed- 
ings thereunder  by  the  city,  involved  in  the  case  at  bar,  conse- 
quently, cannot  be  maintained. 

Judgment  affirmed. 

But  the  legislature  may  declare  a  thing  to  be  a  nuisance  provided  its 
action  is  not  so  unreasonable  as  to  result  in  depriving  one  of  his  prop- 
erty without  due  process  of  law.  Health  Department  v.  Trinity  Church, 
145  N.  Y.  32,  and  Lawton  v.  Steele,  119  N.  Y.   226,  infra. 


STATE  V.  FERGUSON. 


Supreme  Judicial  Court  of  New  Hampshire.    July,  1856. 
33  N.  H.  424. 

This  case  is  submitted  on  the  following  agreed  statement  of  facts : 
The  respondent  was  convicted  and  sentenced  to  pay  a  fine  of 
five  dollars  and  costs,  by  the  police  court  of  the  city  of  Concord, 
on  the  fourth  day  of  September,  1854,  upon  a  complaint  that  the 
respondent,  at  the  city  of  Concord,  on  the  second  day  of  September, 
1854,  not  being  then  and  there  licensed  to  sell  intoxicating  liquors 
within  the  city  of  Concord,  did  then  and  there  sell  one  glass  of 
intoxicating  liquor  to  one  Edwin  N.  Fogg,  contrary  to  the  form  of 
an  ordinance  of  said  city  of  Concord,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  State. 


STATE  V.  FERGUSON.  379 

Sawyeb,  'J.  By  the  provisions  of  section  17  of  the  act  "to  es- 
tablish the  city  of  Concord,"  passed  July  6,  1849,  power  is  given 
to  the  city  council  to  make  and  establish  ordinances  and  by-laws 
for  numerous  purposes,  specifically  set  forth,  and  embracing  a 
great  variety  of  subjects. 

•  •  •  •  •  •,•  •  •  • 

The  ordinance  in  question  goes  beyond  the  authority  conferred 
by  either  of  these  special  provisions. 

The  ordinance  then  is  not  established  by  virtue  of  any  authority 
derived  from  these  special  provisions  of  the  charter;  and  if  such 
authority  is  to  be  found  in  the  charter,  it  must  be  contained  in 
the  general  provision  that  the  city  council  may  make  any  other 
by-laws  and  regulations  which  may  seem  for  the  well-being  of  the 
city,  provided  they  be  not  repugnant  to  the  constitution  or  laws  of 
the  State. 

Assuming  that  the  ordinance  is  but  a  new  municipal  regulation, 
upon  a  subject  fairly  within  the  scope  of  the  general  powers  inci- 
dent to  such  quasi  corporations, the  broad  and  com- 
prehensive terms  of  the  general  provision  are  undoubtedly  suffi- 
cient, if  it  be  construed  by  itself,  independent  of  the  other  pro- 
visions of  the  charter,  to  carry  the  power  claimed. 

But  this  statute,  like  all  other  legislative  acts,  is  to  be  so  con- 
strued that  all  its  parts  shall  stand,  if  this  may  be  done.  For  that 
purpose  the  meaning  of  each  of  its  provisions  is  to  be  gathered 
by  reading  it  in  connection  with  all  others,  and  thus  construing  it 
in  the  light  of  its  context.  The  maxim,  ut  res  magis  valeat  quam 
pereat,  applicable  no  less  to  statutes  than  to  wills  and  other  instru- 
ments of  a  private  character,  can  be  satisfied  only  by  so  constru- 
ing it. 

To  hold,  then,  that  the  general  clause  confers  the 

power,  is  in  effect  to  expunge  these  special  provisions  from  the 
charter,  and  not  these  only,  but  all  the  numerous  clauses  which  go 
to  limit  and  define  the  precise  boundaries  of  the  power  to  be  exer- 
cised by  the  city  in  various  cases  specified  for  the  enacting  of 
by-laws  and  ordinances. 

The  express  grant,  then,  of  the  power  of  legislation  upon  a  par- 
ticular subject,  limited  by  the  terms  of  the  grant  in  respect  to  its 
extent  or  objects  and  purposes,  or  in  reference  to  the  mode  in 
which  it  is  to  be  exercised,  may  be  held,  unless  the  contrary  ex- 
pressly appears  to  be  the  intention  of  the  legislature  upon  a  view 


380  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

of  the  entire  act,  to  exclude  all  authority  to  legislate  upon  that 
subject  beyond  the  prescribed  limits;  and,  in  the  absence  of  any 
further  authority  expressly  granted,  upon  every  other  subject. 
There  is  nothing  in  the  act  to  indicate  a  contrary  intention  in  this 
case.  On  the  other  hand,  the  precise  and  carefully  defined  limita- 
tions upon  the  power  conferred  to  legislate  upon  the  various  sub- 
jects contained  in  the  special  clauses  of  the  act,  would  seem  clearly 
to  indicate  that  the  legislature  intended  thereby  studiously  to 
guard  against  the  exercise  of  the  power  by  the  city  beyond  the 
limitations  so  prescribed.  Why  were  these  precise  and  cautiously- 
worded  limitations  introduced?  It  is  not  a  satisfactory  answer  to 
say  that  they  might  be  swept  away  as  unmeaning  and  useless  by  the 
next  clause  in  the  act ;  the  general  clause  conferring  the  power  to 
legislate  in  all  cases.  If  the  general  clause  had  been  wanting  in 
the  charter,  it  would  seem  that  no  power  would  have  existed  in  the 
city  to  enact  ordinances  or  by-laws  upon  any  subject,  or  in  relation 
to  any  matter,  not  embraced  in  the  catalogue  of  cases  specified  in 
the  special  clauses  as  the  subjects  of  legislation.  That  doctrine  is 
well  settled  upon  the  authorities,  and  may  well  be  sustained  upon 
principle.  It  must  be  understood  that  the  intention  in  the  inser- 
tion of  the  general  clause  was  to  remove  the  implication  which 
would  otherwise  arise  to  restrain  the  city  from  enacting  by-laws 
upon  other  subjects,  and  thus  to  empower  them,  by  virtue  of  the 
special  provisions  conferring  express  power  in  the  specified  cases, 
to  legislate  upon  those  subjects  under  the  limitations  prescribed, 
and,  by  virtue  of  the  general  clause,  upon  all  other  matters  coming 
within  the  scope  of  their  municipal  authority,  subject  only  to  such 
limitations  as  the  general  laws  may  prescribe. 

These  views  do  not  conflict  with  any  of  the  authorities  cited  in 
support  of  the  prosecution.  In  State  v.  Clark,  8  Foster,  176,  the 
question  was  whether  an  ordinance  of  the  city  of  Concord,  passed 
under  the  authority  of  the  charter,  was  valid,  which  prohibited 
the  keeping  of  intoxicating  liquors  in  any  refreshment  saloon,  or 
restaurant.  There  was  no  pretence,  in  that  case,  of  an  implied 
limitation  upon  the  legislative  power  of  the  city  on  this  subject, 
by  a  special  grant  of  power  to  make  by-laws  upon  the  subject  of 
keeping  intoxicating  liquors  in  particular  places,  and  the  ordinance 
was  held  valid,  under  the  general  clause,  as  being  a  matter  prop- 
erly pertaining  to  the  police  of  the  city,  such  that  a  due  regard  to 
public  policy  and  morals  might  require  that  such  liquors  should 
not  be  kept  in  those  places.  In  that  case  the  court  commented 
upon  Heisembrittle  v.  Charleston,  2  McMuUen,  233;  also  cited  in 


STATE  V.  FERGUSON.  381 

the  argument,  and  pronounced  it  to  bear  a  very  strong  resemblance 
to  the  case  then  under  consideration.  The  only  question  in  the  last 
case  cited  was  whether  an  ordinance  of  the  city  prohibiting  shop- 
keepers, unless  licensed,  from  keeping  spirituous  liquors  in  their 
shops,  or  in  any  adjoining  room,  was  authorized  by  a  provision  of 
the  city  charter  vesting  power  in  the  city  to  pass  ' '  every  by-law  or 
regulation  that  shall  appear  to  them  requisite  for  the  security, 
welfare  and  convenience  of  the  city,  or  for  preserving  peace,  order 
and  good  government  therein. ' '  This  comprehensive  provision  was 
in  no  way  qualified  or  limited  in  reference  to  the  subject  matter  of 
the  ordinance  or  by  any  other  provision  of  the  charter. 

The  case  of  Wadleigh  v.  Gilman,  3  Fairfield,  403,  also  cited  in 
the  argument,  is  of  the  same  character.  That  was  an  action  of 
trespass  against  two  of  the  city  officers  of  the  city  of  Bangor,  for 
breaking  and  entering  the  close  of  the  plaintiff,  and  removing  a 
building  standing  thereon.  The  defendants  justified  under  an 
ordinance  of  the  city  government,  prohibiting  the  erection  of 
wooden  buildings  within  certain  limits.  The  city  charter  conferred 
authority  upon  the  city  government  to  ordain  and  establish  such 
laws  and  regulations,  not  inconsistent  with  the  laws  of  the  State, 
as  should  be  needful  for  the  good  order  of  the  city.  As  in  the  case 
of  the  Charleston  ordinance,  this  broad  provision  was  not  limited, 
expressly  or  impliedly,  by  any  other  provision  contained  in  the 
charter. 

The  conclusions  then  to  which  the  court  have  arrived  are,  that 
the  authority  of  the  city  council  of  Concord  to  enact  by-laws  and 
ordinances  on  the  subject  of  the  sale  of  spirituous  and  other  intoxi- 
cating liquors,  is  defined  and  limited  by  the  special  provisions  of 
the  charter  conferring  power  in  relation  to  that  matter,  and  to  be 
exercised  only  in  the  cases  and  to  the  extent  therein  specified;  and 
that  the  general  clause  conferring  power  to  make  any  other  by-laws 
and  regulations  was  not  intended  to  enlarge  or  extend  the  power 
conferred  by  the  special  provisions  in  relation  to  their  various  sub- 
ject matters,  but  to  give  the  power  to  make  by-laws  in  relation  to 
such  other  matters  as  may  properly  be  the  subjects  of  police  regu- 
lation, and  as  are  not  expressly  declared  to  be  the  subjects  of 
municipal  legislation  by  other  provisions  of  the  charter.  Upon 
these  views  the  ordinance  cannot  be  sustained,  and  there  must  be 
an  order  to  the  court  of  common  pleas  that 

The  complaint  be  quashed. 

Official  powers  are  narrowly  construed.  See  People  v.  N.  Y.,  L.  E.  & 
W.  R.  R.  Co.,  104  N.  Y.  58,  infra. 


382  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

2.    Control  of  Courts. 

CITY  OF  CLINTON  V.  PHILLIPS. 

Supreme  Court  of  Illinois.     January,  1871 
58  III.  102. 

Mr.  Justice  Thornton  delivered  the  opinion  of  the  court. 

Appellee  was  arrested  and  prosecuted  under  an  ordinance  of 
the  city  of  Clinton.  He  was  found  not  guilty.  The  city  prose- 
cutes this  appeal. 

The  city  council  adopted  an  ordinance  prohibiting  the  sale  of 
intoxicating  liquors,  of  any  kind  whatsoever,  and  affixed  penalties 
for  its  violation. 

It  was  agreed  that  the  prosecution  was  for  a  violation  of  sec- 
tion 5  of  this  ordinance ;  that  the  appellee  was  a  druggist,  engaged 
in  business  in  the  city,  and  as  such  had,  for  more  than  one  year, 
sold  spirituous  liquors  for  medical  purposes ;  but  that  he  had  not 
reported  such  sales  to  the  city  council,  as  the  section  required 
him  to  do. 

Errors  enough  have  been  assigned  and  points  made  to  afford 
opportunity  to  write  a  volume  upon  the  powers  of  the  legislature 
and  of  a  city  government.  This  court  has  often  decided  as  to 
the  power  of  the  legislature,  over  the  sale  and  traISc  in  intoxi- 
cating liquors,  and  the  right  to  confer  it  upon  municipal  corpora- 
tions. 

We  propose  to  discuss  one  question  only.  Had  the  city  council 
power  to  enact  section  5  of  the  ordinance?  The  solution  of  this 
in  the  negative  is  decisive  of  the  case. 

The  penalty  annexed  is  not  for  the  sale  of  spirituous  liquors. 
This  is  expressly  permitted  to  druggists,  for  sacramental,  chem- 
ical, mechanical  and  medicinal  purposes.  It  is  merely  for  a  fail- 
ure to  report  quarter-yearly,  the  kind  and  quantity  sold  for  such 
purposes,  when  and  to  whom  sold,  and  on  whose  prescription  or 
assurance.  This  report  miist  be  verified  by  the  affidavit  of  the 
druggist,  and  of  every  clerk  and  servant  in  his  employ. 

Under  this  section,  it  is  no  offense  to  sell  spirituous  liquors  for 
the  purpose  indicated.  Neither  is  it  one  to  sell  without  the  pre- 
scription of  a  physician,  nor  without  having  ascertained,  beyond 


m  THE  MATTEB  OP  AH  YOU.  383 

a  reasonable  doubt,  the  object  of  the  purchaser.    The  only  offence 
is  the  neglect  to  furnish  a  detailed  statement  of  his  business. 

The  section  is  suspicious  in  its  spirit,  and  excessively  stringent 
in  its  requirements.  It  permits  the  sale,  and  then  imposes  the  most 
odious  conditions.  A  mere  venial  omission  is  tortured  into  a  grave 
offence,  punishable  with  heavy  penalty.  The  private  citizen,  vested 
with  no  public  office  or  employment,  should  not  be  subjected  to 
such  inquisition. 

All  men  have  a  right  to  the  secure  enjoyment  of  property,  and 
to  be  protected  in  their  houses,  papers  and  possessions  against  un- 
reasonable searches.  This  section  is  an  invasion  of  the  sanctity  of 
private  business,  and  ought  not  to  be  tolerated. 

There  was  no  power  to  enact  it,  and  the  judgment  must  be  af- 
firmed. 

Judgment  affirmed. 

See  also  United  States  v,  Symonds,  120  U.  S.  46,  and  Campbell  v. 
United  States,  107  U.  S.  407,  as  to  power  of  courts  to  declare  adminis- 
trative regulations  invalid.  But  courts  may  not  enjoin  the  passage  of  an 
ordinance.    Harrison  v.  New  Orleans,  33  La.  Ann.  222,  infra. 


IN  THE  MATTER  OF  AH  YOU. 

Supreme  Court  of  California.    February,  1891. 
88  Cal.   99. 

Application  to  the  supreme  court  for  discharge  upon  writ  of 
habeas  corpus.    The  facts  are  stated  in  the  opinion  of  the  court. 

Habrison,  J.  The  petitioner  was  convicted  in  the  police  court 
of  the  city  and  county  of  San  Francisco  of  a  misdemeanor,  for 
visiting  a  house  of  ill-fame,  and  on  the  seventh  day  of  March,  1890, 
was  sentenced  to  "pay  a  fine  of  four  hundred  dollars,  and  in  de- 
fault of  payment  thereof,  that  he  be  imprisoned  in  the  county  jail 
of  said  city  and  county  at  the  rate  of  one  daj''  for  each  one  dollar 
of  fine  until  said  fine  is  satisfied."  Under  a  commitment  issued 
upon  this  judgment  he  was  immediately  taken  into  the  custody  of 
the  sheriff,  and  has  since  that  day  been  confined  in  the  county  jail 
of  San  Francisco. 


384  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

The  maximum  amount  of  the  punishment  for  this  offense  is  not 
defined,  but  is  left  to  the  discretion  of  the  court,  except  as  it  is 
qualified  by  the  provisions  of  section  1  of  order  1587,  which  reads 
as  follows:  "Any  person  violating  any  of  the  provisions  of  this 
order  shall  be  deemed  guilty  of  a  misdemeanor,  and  punished  by 
a  fine  not  exceeding  one  thousand  dollars,  or  imprisonment  not  ex- 
ceeding six  months,  or  by  both  such  fine  and  imprisonment." 

Municipal  ordinances  must  be  reasonable,  and  the  penalties  pre- 
scribed for  their  violation  must  also  be  reasonable  as  well  as 
definite.  It  is  not  essential,  however,  that  the  precise  amount  of 
the  penalty  for  each  offense  shall  be  designated  in  the  ordinance. 
It  is  sufficient  if  it  is  left  to  the  discretion  of  the  court,  within 
fixed,  reasonable  limits.  The  maximum  limit  must,  however,  be 
reasonable.    Dillon  on  Mun.  Corp.,  sees.  338,  341. 

The  legislature  (Stats.  1861,  p.  552)  has  given  to  the  city  and 
county  of  San  Francisco  power  to  * '  determine  the  fines,  forfeitures, 
and  penalties  that  shall  be  incurred  for  the  breach  of  regulations 
established  by  its  board  of  supervisors,"  with  the  maximum  limit 
of  one  thousand  dollars,  or  six  months'  imprisonment  or  both.  But 
it  does  not  follow  that  the  city  is  authorized  to  affix  this  maximum 
penalty  for  the  violation  of  every  regulation  that  it  may  establish 
under  its  general  power  to  define  offenses  and  prescribe  penalties 
therefor.  It  is  not  justified  in  prescribing  the  same  penalty 
for  each  offense  which  it  may  define.  Penalties  should  be  pre- 
scribed with  reference  to  the  offenses  which  are  committed,  rather 
than  to  the  power  under  which  they  may  be  prescribed.  This 
power  to  "determine"  the  penalties  which  shall  be  incurred  for 
the  breach  of  its  regulations  has  been  conferred  upon  the  city,  and 
must  be  exercised  by  its  board  of  supervisors,  and  not  left  to  the 
discretion  of  the  judge  before  whom  the  offense  is  tried.  Matter 
of  Frazee,  63  Mich.  408.  The  board  of  supervisors  must  itself  fix, 
within  limits  which  are  reasonable,  the  penalty  to  be  incurred  for 
the  violation  of  each  offense.  If,  however,  the  board  of  super- 
visors does  not  determine  the  penalty  in  any  other  terms  than  that 
it  shall  not  be  less  than  twenty  dollars,  but  leaves  to  the  judge  the 
power  to  fix  the  maximum  amount  of  punishment  which  the  legis- 
lature has  authorized  to  be  affixed  for  the  violation  of  any  offense, 
instead  of  fixing  the  penalty  within  reasonable  limits,  it  gives  to 
the  judge  the  discretion  of  determining  what  the  penalty  shall  be 
for  each  offense.  This  has  the  same  effect  as  if  it  had  itself  affixed 
the  maximum  limit  of  the  penalty  at  one  thousand  dollars.    But 


IN   THE   MATTER  OF   AH  YOU.  385 

a  municipal  ordinance  which  should  prescribe  a  fine  of  one  thous- 
and dollars,  or  even  four  hundred  dollars,  as  the  penalty  for  visit- 
ing a  house  of  ill-fame,  would  be  not  only  unreasonable,  as  impos- 
ing a  punishment  greatly  disproportionate  to  the  offense,  but  would 
also  be  inconsistent  with  the  general  principles  of  the  Penal  Code 
upon  kindred  topics. 

The  act  of  which  the  petitioner  was  convicted  is  not  enumerated 
among  the  crimes  which  are  defined  in  the  Penal  Code,  but  is  made 
an  offense  solely  by  virtue  of  the  ordinance.  The  legislature  has 
not  deemed  it  necessary  to  prescribe  any  punishment  therefor,  and 
from  the  statutes  which  it  has  adopted  upon  kindred  topics,  the 
penalty  allowed  by  the  ordinance  in  question  must  be  held  to  be 
not  in  harmony  with  its  general  policy. 

We  are  of  the  opinion  that  so  much  of  the  ordinance  in  question 
as  permits  a  fine  of  one  thousand  dollars  to  be  imposed  as  the  pen- 
alty for  visiting  a  house  of  ill-fame  is  unreasonable,  and  not  in 
harmony  with  the  laws  of  the  State,  and  therefore  void.  The  peti- 
tioner must  therefore  be  discharged  from  custody. 

It  is  so  ordered. 
An  administrative  authority  which  has  the  power  to  pass  police 
ordinances  and  issue  special  orders  of  individual  application  has,  even 
in  the  absence  of  a  statutory  provision  to  that  effect,  the  right  to  impose 
reasonable  penalties  in  the  nature  of  a  fine  for  a  violation  of  its  ordi- 
nances and  orders,  Mobile  v.  Yuille,  3  Ala.  137;  but  may  not,  without 
statutory  authorization,  provide  arrest  and  imprisonment  even  for  non- 
payment of  such  fine,  Brieswick  v.  Brunswick,  51  Ga.  639,  or  distress 
and  sale  of  property  for  collection  of  the  fine.  White  v.  Tallman,  2 
Dutcher  N.  J.  L.  67.  But  violations  of  such  ordinances  or  orders  are 
Often  made  by  statute,  misdemeanors  punishable  by  imprisonment. 


CITY  OF  CHICAGO  V.  QUIMBY. 

Supreme  Court  of  Illinois.    April,  1865. 

38  m.  274. 

Writ  of  error  to  the  Circuit  Court  of  Cook  County. 

Action  of  debt  by  the  city  against  Quimby,  a  member  of  the 
Board  of  Trade,  for  alleged  violation  of  a  city  ordinance,  in  failing 
to  have  flour  inspected  by  the  city  inspector.  Quimby  sold  flour  to 
one  Stewart,  and  both  parties  by  agreement  had  the  same  inspected 
by  the  Board  of  Trade  inspector,  and  not  by  the  city  inspector. 

25 


.386  THE  EXERCISE  OP  OFFICIAL  AUTHOEITT. 

Judgment  in  the  Police  Court  was  rendered  for  the  city,  which  on 
appeal  was  reversed  in  the  Circuit  Court,  whereon  the  city  brings 
writ  of  error  to  this  court. 
Mr.  Chief  Justice  Walker  delivered  the  opinion  of  the  court. 

It  was  likewise  insisted  that  a  justice  of  the  peace  had  no  juris- 
diction, because  in  this  case  the  sale  was  of  two  hundred  barrels 
of  flour.  A  forfeiture  of  "five  dollars  for  each  and  every  barrel 
so  sold,  without  such  inspection,"  would  make  an  aggregate  sum 
of  one  thousand  dollars.  This  would  be  nine  hundred  dollars  be- 
yond the  jurisdiction  of  a  justice  of  the  peace.  The  city  charter 
by  the  sixty-fourth  division  of  the  eighth  section  of  chapter  four, 
has  limited  the  power  of  the  city  to  impose  fines  and  penalties,  for 
breaches  of  its  ordinances,  to  one  hundred  dollars.  This  ordinance 
is  repugnant  to  their  charter,  so  far  as  it  operates  to  impose  a  pen- 
alty beyond  one  hundred  dollars,  and  is  to  that  extent  inoperative. 
It  being  a  single  transaction,  a  recovery,  if  otherwise  author- 
ized, could  only  be  had  to  the  extent  of  one  hundred  dollars,  and 
as  the  penalty  could  not  be  split,  such  a  recovery  would  be  a  bar 
to  any  future  proceedings  for  the  balance.  But  even  if  a  justice 
had  jurisdiction,  a  recovery  could  not  be  had  for  more  than  one 
hundred  dollars,  as  that  is  the  limit  of  the  penalty  that  can  be  im- 
posed, and  the  transaction  being  but  one  and  indivisible,  that  would 
be  the  limit  of  the  recovery.  The  ordinance  must  therefore  be 
construed  to  impose  a  fine  of  five  dollars  for  each  barrel  sold  in 
violation  of  its  provisions,  until  the  sum  reaches  one  hundred  dol- 
lars in  the  same  sale.  If  the  sale  exceeded  twenty  barrels,  still  it 
would  be  but  one  hundred  dollars,  whilst  if  it  was  of  twenty  bar- 
rels or  less  it  would  be  five  dollars  on  each  barrel.  If  any  other 
construction  which  now  occurs  to  us  were  given,  the  ordinance 
would  have  to  be  held  void.  It  therefore  follows  that  a  justice  of 
the  peace  has  jurisdiction  under  this  ordinance,  as  in  other  cases, 
as  the  penalty  can  never  exceed  one  hundred  dollars.  The  judg- 
ment of  the  court  below  must  be  affirmed. 

Judgment  affirmed. 


LANGENBERG    V.    DECKEB.  387 

B.    Special  Acts  of  Individual  Application. 

1.    Exercise  of  Judicial  Powers. 

LANGENBEKG  V.  DECKER. 

Supreme  Court  of  Indiana,    November,  1891. 

131  Indiana  471. 

Coffey,  J.  The  general  assembly  of  the  State  passed  an  act, 
which  was  approved  and  went  into  force  on  the  6th  day  of  March, 
1891,  entitled  **An  act  concerning  taxation,  repealing  all  laws  in 
conflict  herewith,  and  declaring  an  emergency."  j 

The  act  creates  a  State  Board  of  Tax  Commissioners,  eomposect 
of  five  persons,  viz.,  the  Secretary  of  State,  the  Auditor  of  State, 
and  the  Governor  of  the  State,  who  are  styled  ex  officio  members, 
and  two  persons  of  opposite  political  faith  appointed  by  the  Gov- 
ernor of  the  State.  At  the  time  the  matters  occurred,  out  of  which 
this  suit  arose,  the  board  was  composed  of  the  Secretary  of  State, 
the  Auditor  of  State,  the  Governor  of  the  State,  Josiah  N.  Gwin 
and  Ivan  N.  Walker. 

By  the  provisions  of  the  act  the  Governor  of  the  State  is  the 
chairman  of  the  State  Board  of  Tax  Commissioners. 

Section  129  of  the  act  provides  that  this  board  shall  annually 
convene  in  the  office  of  the  Auditor  of  State  on  the  first  Monday  of 
August  each  year  for  the  purpose  of  assessing  railroad  property 
and  equalizing  the  assessment  of  real  estate;  that  it  shall  not  be 
bound  by  any  reports  or  estimates  of  value  of  railroad  property, 
real  estate  or  other  property,  as  returned  to  the  county  auditors  or 
to  the  Auditor  of  State,  but  shall  appraise  and  assess  all  property 
at  its  true  cash  value,  as  defined  by  the  act,  according  to  its  best 
knowledge  and  judgment,  and  so  equalize  the  assessment  of  prop- 
erty throughout  the  State.  It  also  contains  this  provision :  *  *  They 
shall  have  the  power  to  send  for  persons,  books  and  papers,  to  ex- 
amine records,  hear  and  question  witnesses,  to  punish  for  contempt 
any  one  who  refuses  to  appear  and  answer  questions,  by  fine  not 
exceeding  one  thousand  dollars,  and  by  imprisonment  in  the  county 
jail  of  any  county  not  exceeding  thirty  days,  or  both.  Appeals 
shall  lie  to  the  Criminal  Court  of  Marion  county  from  all  orders 
of  the  board  inflicting  such  punishment,  which  appeals  shall  be 
governed  by  the  laws  providing  for  appeals  in  criminal  cases  from 
justices  of  the  peace  so  far  as  applicable.    The  sheriffs  of  the  sev- 


888  THE  EXERCISE  OF  OFFICIAL  AUTHORITY. 

eral  counties  of  the  State  shall  serve  all  process  and  execute  all 
orders  of  the  board. 

Claiming  to  act  under  the  power  and  authority  conferred  upon 
it  by  the  provisions  of  this  statute,  the  State  Board  of  Tax  Commis- 
sioners, on  its  own  motion,  caused  a  subpoena  duces  tecum  to  be 
issued  to  all  the  banks  in  the  State,  requiring  the  president,  cashier 
and  book-keeper,  or  either  of  them,  of  the  bank  named  in  the  sub- 
poena, to  appear  before  the  board,  at  the  office  of  the  State  Board 
of  Tax  Commissioners,  in  the  State-House  in  the  city  of  Indian- 
apolis, on  a  day  named  in  the  subpoena,  and  to  bring  and  have  with 
them,  then  and  there,  such  books,  papers  and  accounts  of  such 
banking  institution  as  should  fully  disclose  and  show  the  names 
of  all  persons  having  money,  bonds,  stocks,  notes  or  other  prop- 
erty of  value  on  deposit  and  in  the  custody  of  such  bank  on  the 
1st  day  of  April,  1891,  and  the  respective  amounts  of  such  de- 
posits or  other  property  in  the  custody  of  the  bank,  and  to  answer 
all  questions  which  might  be  asked  in  relation  thereto,  or  with 
reference  to  the  property  owned  by  the  bank  itself.  The  subpoena 
was  signed  by  Joseph  T.  Fanning,  as  secretary  of  the  board. 

One  of  the  subpoenas  was  served  upon  the  appellee,  at  the  city 
of  Evansville,  where  he  resides,  and  where  he  is  vice-president  of  a 
State  bank  known  as  the  German  Bank  of  Evansville.  In  answer 
to  the  subpoena  he'uppeared  before  the  State  Board  of  Tax  Com- 
missioners on  the  25th  day  of  August,  1891,  when  there  was  present 
of  the  members  of  the  board  the  following  persons,  and  no  others, 
viz. :  Claude  Matthews,  Secretary  of  State,  acting  as  president  of 
the  board ;  J.  0.  Henderson,  Auditor  of  State,  and  Ivan  N.  Walker. 

Upon  his  appearance  he  was  duly  sworn,  when  the  following 
proceedings  were  had,  viz.: 

"Q.  State  the  aggregate  amount  of  the  individual  deposits 
held  by  the  German  Bank  of  which  you  are  vice-president  on  the 
1st  day  of  April,  1891.    A.    About  $300,000. 

"Q.  Give  the  amount  of  money  held  on  deposit  by  said  bank 
on  the  1st  day  of  April,  1891,  belonging  to  some  one  depositor. 

"The  witness:  Before  answering  the  question  I  respectfully 
ask  the  board  whether  there  is  any  appeal,  complaint,  suit  or  pro- 
ceeding of  any  kind  pending  before  this  board  or  elsewhere  to 
assess  any  depositor,  or  to  revise  his  tax  list  in  any  manner.  *  * 

By  the  board :    "No ;  we  are  exercising  the  power  of  discovery.'* 

The  witness :    "I  decline  to  answer,  under  the  advice  of  counsel^ 


LAN6ENBEBG    V.    DECKER.  389 

either  as  to  the  name  of  any  depositor  or  the  amount  of  his  de- 
posit. ' ' 

"Q.  Give  me  the  amount  of  personal  property,  other  than 
money,  held  by  your  bank,  as  custodian  or  agent,  on  the  1st  day  of 
April,  1891,  such  as  notes,  stocks,  bonds  or  other  property  of  value 
belonging  to  any  one  depositor."  A.  "I  respectfully  ask  the 
board  to  state,  before  answer  to  the  question  just  put,  whether 
there  is  any  appeal,  complaint,  cause  or  proceeding  of  any  kind 
pending  before  this  board  or  elsewhere  to  assess  the  property  of 
said  bank  or  any  partner  therein. ' ' 

Answer  by  the  board :    ' '  No. ' ' 

The  witness:    "I  decline  to  do  so,  under  advice  of  counsel." 

''Q.  You  are  now  commanded  to  produce  such  books  and  pa- 
pers of  the  German  bank  for  the  inspection  of  this  board  as  will 
fully  afford  the  information  herein  sought  to  be  obtained,  and 
which  will  discover  the  names  of  the  depositors  of  said  German 
bank  on  the  1st  day  of  April,  1891,  and  the  several  amounts  to 
their  credit;  also,  such  books  as  will  show  the  names  and  descrip- 
tion of  the  property  of  value  held  by  said  bank  as  custodian  and 
agent  on  said  day.  A.  As  vice-president  of  said  bank  I  now  de- 
cline to  produce  any  of  its  books  or  papers  for  the  inspection  of 
this  board  for  any  purpose. ' ' 

Thereupon  the  State  Board  of  Tax  Commissioners,  because  of 
the  refusal  of  the  appellee  to  appear  and  answer  the  questions 
above  set  forth,  and  to  give  the  information  thereby  sought  to  be 
elicited,  assessed  against  him  a  fine  of  five  hundred  dollars,  and 
that  he  stand  committed  until  the  fine  be  paid  or  replevied,  and 
entered  the  following  judgment:  "Therefore,  it  is  considered 
and  ordered  by  the  State  Board  of  Tax  Commissioners  that  Philip 
C.  Decker,  on  account  of  his  refusal  to  appear  and  answer  ques- 
tions, and  his  disobedience  to  the  order  of  this  board,  be  and 
hereby  is  fined  in  the  sum  of  five  hundred  dollars  ($500),  and  it 
is  further  considered  by  the  board  that  said  Philip  C.  Decker  do 
stand  committed  to  the  jail  of  Marion  county,  Indiana,  until  said 
fine  be  paid  or  replevied." 

Upon  entering  the  foregoing  judgment  the  secretary  of  the  board 
delivered  to  the  appellant,  as  the  sheriff  of  Marion  county,  a  com- 
mitment reciting  the  fact  that  the  appellee  had  been  fined  the  sum 
of  five  hundred  dollars  for  contempt,  and  ordering  that  he  be  com- 
mitted to  the  jail  of  Marion  county  until  discharged  by  due  process 
of  law.  Upon  this  commitment  the  appellee  was  arrested.  He  there- 


390  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

upon  filed  his  petition  in  the  Marion  Superior  Court  praying  for 
a  writ  of  habeas  corpus. 

To  the  writ  issued  upon  this  petition  the  appellant  made  his 
return  stating,  among  other  things,  substantially  the  proceedings 
above  set  forth.  To  this  return  the  appellee  filed  exceptions,  which 
were  sustained  by  the  court,  and  an  order  was  entered  discharging 
the  appellee  from  custody. 

The  assignment  of  error  calls  in  question  the  propriety  of  the 
ruling  of  the  Marion  Superior  Court  in  sustaining  the  exceptions 
to  the  return  made  by  the  appellant  to  the  writ  of  habeas  corpus. 

The  solution  of  the  question  presented  renders  it  necessary  that 
we  shall  inquire: 

First.  As  to  what  department  of  the  State  government  the 
State  Board  of  Tax  Commissioners  belong;  and 

Second.  Into  the  nature  of  the  power  to  fine  and  commit  for 
contempt. 

Article  3,  section  1,  of  our  State  Constitution,  is  as  follows: 

**The  powers  of  the  government  are  divided  into  three  separate 
departments;  the  legislative,  the  executive,  including  the  adminis- 
trative, and  the  judicial;  and  no  person  charged  with  official  du- 
ties under  one  of  these  departments  shall  exercise  any  of  the  func- 
tions of  another,  except  as  in  this  Constitution  expressly  pro- 
vided." 

It  can  not,  with  propriety,  be  contended  that  the  State  Board  of 
Tax  Commissioners  belongs  to  the  legislative  department  of  the 
State,  for  it  has  no  power  to  enact  laws.  The  general  assembly 
can  not  delegate  its  law-making  power  to  any  other  person  or  body. 
It  can  not  be  successfully  maintained  that  the  legislature  could 
confer  on  the  Governor  of  the  State  and  the  principal  administra- 
tive officers  of  the  State  duties  pertaining  to  the  judicial  depart- 
ment. Indeed,  the  learned  Attorney-General  admits,  in  argument, 
that  the  State  Board  of  Tax  Commissioners  is  not  a  court,  and  he 
does  not  contend  that  it  can  perform  any  function  which  is  of  a 
purely  judicial  character.  As  the  State  Board  of  Tax  Commis- 
sioners is  neither  a  legislative  body  nor  a  court,  it  must  belong  to 
the  executive  or  administrative  department  of  the  State.  That  it 
does  belong  to  that  department,  we  think,  is  too  plain  for  argu- 
ment. It  is  charged  with  the  duty  of  executing  certain  provisions 
of  the  revenue  laws  of  the  State,  and  when  it  has  performed  that 
duty  its  functions  are  at  an  end.    But  because  it  is  a  body  belong- 


LANGENBERG    V.    DECKER.  391 

ing  to  the  executive  or  administrative  department  of  the  govern- 
ment it  by  no  means  follows  that  it  may  not  perform  functions 
which  are,  in  their  nature,  judicial.  Hearing  and  determining  ap- 
peals from  the  county  board  of  review,  hearing  witnesses  and 
equalizing  the  appraisement  of  real  estate,  and  assessing  the  rail- 
road property  named  in  the  act,  is  the  performance  of  a  duty  ju- 
dicial in  its  nature. 

It  is  often  a  matter  of  much  difficulty  to  determine  whether  the 
functions  exercised  by  a  tribunal  of  this  character  are  such  as  per- 
tain exclusively  to  the  courts,  or  whether  they  are  such  as  it  may 
lawfully  exercise 

That  it  was  in  the  power  of  the  general  assembly  to  confer  on 
the  State  Board  of  Tax  Commissioners  the  power  to  hear  and  de- 
termine appeals  from  the  county  boards  of  review,  to  equalize  tho 
assessments  of  real  estate  and  to  assess  the  railroad  property  named 
in  the  act  is  not  doubted,  and  the  question  as  to  whether  the  legis- 
lature could  confer  upon  it  the  power  to  fine  and  imprison  the 
citizens  of  the  State  for  contempt  of  its  authority  depends  upon 
whether  such  action  is  purely  judicial  or  only  quasi  judicial. 

The  power  to  punish  for  contempt  belongs  ex- 
clusively to  the  courts,  except  in  cases  where  the  Constitution  of  a 
State  expressly  confers  such  power  upon  some  other  body  or 
tribunal.  Our  State  Constitution  confers  such  power  upon  the 
general  assembly,  but  upon  no  other  body.  The  doctrine  that  such 
power  rests  with  the  courts  alone  is  based  upon  the  fact  that  a 
party  can  not  be  deprived  of  his  liberty  without  a  trial.  To  ad- 
judge a  person  guilty  of  contempt  for  a  refusal  to  answer  ques- 
tions, the  tribunal  must  determine  whether  such  questions  are 
material,  and  whether  it  is  a  question  which  the  witness  is  bound 
to  answer,  otherwise  it  can  not  be  determined  that  the  witness  is 
in  contempt  of  its  authority  in  refusing  to  answer. 

So  far  as  we  are  informed,  the  trial  of  a  citizen  involving  the 
question  of  his  liberty,  by  any  civil  tribunal  other  than  a  court,  has 
never  been  sustained,  unless  the  power  to  do  so  was  conferred  by 
some  constitutional  provision.  For  the  reasons  above  given,  our 
conclusion  is  that  so  much  of  the  act  under  consideration  as  at- 
tempts to  confer  on  the  State  Board  of  Tax  Commissioners  power 
to  fine  and  imprison  for  contempt  is  in  violation  of  section  1,  ar- 
ticle 3,  of  the  State  Constitution,  and  is  void.  It  follows  that  such 
board  had  no  authority  to  fine  the  appellee  and  commit  him  to  the 


392  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

jail  of  Marion  county,  and  that  the  Marion  Superior  Court  did  not 
err  in  ordering  his  release. 

It  is  claimed,  however,  by  the  learned  Attorney-General  that  the 
conclusion  here  reached  is  in  conflict  with  the  conclusion  in  the 
cases  of  ex  'parte  Mallinkrodt,  20  Mo.  493;  Swafford  v.  Berrong, 
84  Ga.  95,  and  Noyes  v.  Byxhee,  45  Conn.  382. 

We  have  given  each  of  those  cases  a  careful  consideration. 

In  the  case  of  Swafford  v.  Berrong,  supra,  it  w6s  held  that  the 
act  of  the  general  assembly  incorporating  the  town  of  Claj'ton 
conferred  upon  the  governing  board  or  council  judicial  powers, 
with  authority  to  try  offenders  alleged  to  have  violated  the  town 
ordinances;  and  inasmuch  as  it  was  a  court,  when  sitting  for  that 
purpose,  it  had  the  power  to  punish  for  contempt.  No  question  of 
the  authority  of  the  general  assembly  to  confer  such  power,  under 
the  Constitution  of  Georgia,  was  involved  in  the  case  or  decided 
by  the  court. 

In  our  opinion  these  authorities  do  not  conflict  with  the  conclu- 
sion we  have  reached  in  this  case. 

Judgment  affirmed. 

See  also  People  v.  Chase,  165  111.  527,  holding  that  the  power  to  decide, 
even  subject  to  appeal  to  the  courts,  the  title  to  real  estate  Is  a  judicial 
power  which  may  not  be  granted  by  the  legislature  to  an  administrative 
officer.  But  the  power  to  order  arrest  for  non-payment  of  taxes  may 
constitutionally  be  vested  in  an  administrative  officer.  Commonwealth 
V.  Byrne,  20  Grattan  165,  infra. 


INTERSTATE  COMMERCE  COMMISSION  V.  BRIMSON. 

Supreme  Court  of  the  United  States.     October,  1893. 
154  United  States  447. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  appeal  brings  up  for  review  a  judgment  rendered  Decem- 
ber 7,  1892,  dismissing  a  petition  filed  in  the  Circuit  Court  of  the 
United  States  on  the  15th  day  of  July,  189!j,  by  the  Interstate 
Commerce  Commission  under  the  act  of  Congress  entitled  "An  act 
to  regulate  commerce." 


INTERSTATE    COMMERCE    COMMISSION    V,    BRIMSON.  393 

The  petition  was  based  on  the  twelfth  section  of  the  act  author- 
izing the  commission  to  invoke  the  aid  of  any  court  of  the  United 
States  in  requiring  the  attendance  and  testimony  of  witnesses,  and 
the  production  of  documents,  books  and  papers. 

The  Circuit  Court  held  that  section  to  be  unconstitutional  and 
void,  as  imposing  on  the  judicial  tribunals  of  the  United  States 
duties  that  were  not  judicial  in  their  nature.  In  the  judgment  of 
that  court,  this  proceeding  was  not  a  case  to  which  the  judicial 
power  of  the  United  States  extended.    53  Fed.  Rep.  476,  480. 

The  twelfth  section,  26  Stat.  743,  c.  126,  the  validity  of  certain 
parts  of  which  is  involved  in  this  proceeding,  provides  as  follows : 

**For  the  purpose  of  this  act  the  commission  shall 

have  power  to  require,  by  subpoena,  the  attendance  and  testimony 
of  witnesses  and  the  production  of  all  books,  papers,  tariffs,  con- 
tracts, agreements,  and  documents  relating  to  any  matter  under 
investigation And  in  case  of  disobedience  to  a  sub- 
poena the  commission,  or  any  party  to  a  proceeding  before  the 
commission,  may  invoke  the  aid  of  any  court  of  the  United  States 
in  requiring  the  attendance  and  testimony  of  witnesses  and  the  pro- 
duction of  books,  papers,  and  documents  under  the  provisions  of 
this  section. 

''And  any  of  the  Circuit  Courts  of  the  United  States  within  the 
jurisdiction  of  which  such  inquiry  is  carried  on  may,  in  case  of 
contumacy  or  refusal  to  obey  a  subpoena  issued  to  any  common 
carrier  subject  to  the  provisions  of  this  act,  or  other  person,  issue 
an  order  requiring  such  common  carrier  or  other  person  to  appear 
before  said  commission  (and  produce  books  and  papers  if  so  or- 
dered) and  give  evidence  touching  the  matter  in  question;  and  any 
failure  to  obey  such  order  of  the  court  may  he  punished  by  such 
court  as  contempt  thereof." 

The  nature  of  the  present  proceeding,  instituted  pursuant  to  the 
authority  conferred  by  that  section,  will  appear  from  the  following^ 
summary  of  the  pleadings  and  orders  in  the  cause: 

Prior  to  the  14th  of  June,  1892,  informal  complaint  was  made 
to  the  Interstate  Commerce  Commission,  under  the  provisions  of 
the  Interstate  Commerce  Act,  that  the  Illinois  Steel  Company,  a 
corporation  of  Illinois,  had  caused  to  be  incorporated  under  the 
laws  of  that  State  the  Calumet  and  Blue  Island  Railroad  Com- 
pany, the  Chicago  and  Southeastern  Railway  Company  of  Illinois,, 
the  Joliet  and  Blue  Island  Railway  Company,  and  the  Chicago  and 
Kenosha  Railway  Company,    for    the    purpose  of  operating  its; 


394  THE  EXERCISE  OP  OFFICIAL  AUTHOBITT. 

switches  and  side  tracks  at  South  Chicago,  Chicago,  and  Joliet, 
respectively,  and  engaging  in  traffic  by  a  continuous  shipment  from 
cities   and   places   without  to   cities   and   places  within   Illinois. 


The  commission,  of  its  own  motion,  decided  to  investigate  the 
matters  set  forth  in  said  informal  complaint  by  inquiring  into  the 
business  of  all  said  railroad  companies  and  the  management  thereof 
with  reference  as  well  to  the  alleged  making  of  illegal,  unjust  and 
unreasonable  rates,  as  to  the  alleged  unjust  and  illegal  discrimina- 
tion in   favor  of  the   Illinois  Steel   Company,   and  the   failure 

to  file  with  the  commission  the  above  contracts, 

agreements,  and  tariffs. 

An  order  was  thereupon  made  by  the  commission,  which  recited 
the  facts  of  the  informal  complaint  made  to  it,  and  required  each  of 
the  above-mentioned  companies  to  make  and  file  in  its  office  in 
"Washington,  a  full,  complete,  perfect,  and  specific  verified  answer, 
setting  forth  all  the  facts  in  regard  to  the  matters  complained  of. 


Each  of  the  companies  which,  according  to  the  allegations  of  the 
petition,  the  Illinois  Steel  Company  had  caused  to  be  incorporated, 
filed  its  answer  with  the  commission,  and  averred  that  it  had  in 
all  respects  complied  with  the  obligations  imposed  upon  it  by  the 
laws  of  the  State  and  of  the  United  States ;  that  it  was  not  engaged 
in  interstate  commerce  within  six  months  preceding,  the  filing  of 
the  complaint  against  them ;  and  it  answered  *  *  No "  to  each  of  the 
above  specific  questions.     . 

The  commission,  notwithstanding  these  denials,  conceived  it  to 
be  their  duty  to  proceed  with  the  investigation  by  the  examination 
of  witnesses  and  the  books  and  papers  of  the  corporations  involved, 
and  especially  to  ascertain  whether  the  Illinois  Steel  Company  was 
the  owner  in  fact  of  the  railroads,  which  it  was  alleged  to  have 
caused  to  be  incorporated,  and  whether  such  incorporations  were 
for  the  purpose  of  giving  to  that  company  an  undue  and  illegal 
preference  in  the  transportation  of  its  property  and  freight. 

Among  the  witnesses  subpoenaed  to  testify  before  the  commis- 
sion was  "William  G.  Brimson,  the  president  and  manager  of  the 

five  roads  so  incorporated  in  Illinois Having  stated 

that  his  companies  did  not  engage  in  the  transportation  business 
for  everybody  and  anybody  having  occasion  to  employ  them,  and 
that  their  business  was  limited  to  the  above  companies  with  which 
they  had  traffic  arrangements,  he  was  asked  whether  the  companies 
of  which  he  was  president  and  manager  were  owned  by  the  Illinois 


INTERSTATE    COMMERCE    COMMISSION    V.    BRIMSON.  395 

Steel  Company,  The  witness,  under  the  advice  of  counsel,  refused 
to  answer  this  question, 

J,  S,  Keefe,  secretary  and  auditor  of  the  five  roads  mentioned, 
was  examined  by  the  commission  as  a  witness.  He  admitted  that 
he  had  in  his  possession  a  book  showing  the  names  of  the  stock- 
holders of  the  Calumet  and  Blue  Island  Railway  Company,  but  re- 
fused, upon  the  demand  of  the  commission,  to  produce  it.  He  also 
refused  to  answer  the  question,  **Do  you  know,  as  a  matter  of  fact, 
whether  the  Illinois  Steel  Company  owns  the  greater  part  of  the 
stock  of  these  several  railroads?" 

William  R,  Stirling,  fii-st  vice-president  of  the  Illinois  Steel 
Company,  was  also  examined  as  a  witness,  and  after  stating  that 
that  company  had  a  contract  with  the  five  railroads  in  question  to 
handle  the  railroad  business  at  the  five  ** plants"  of  the  steel  com- 
pany, refused  to  answer  the  question,  "Is  that  the  only  relation 
which  your  company  sustains  to  these  railroad  companies  ? ' ' 

On  the  succeeding  day  the  commission  issued  a  subpoena  duces 
tecum,  directed  to  J,  S.  Keefe,  secretary  and  auditor  of  the  five 
railroads  in  question,  commanding  him  to  appear  before  that  body, 
and  bring  with  him  the  stock  books  of  those  companies,  A  like 
subpoena  was  issued  to  William  R.  Stirling,  as  first  vice-president 
of  the  steel  company,  commanding  him  to  appear  before  the  com- 
mission and  produce  the  stock  books  of  that  company,  Keefe  and 
Stirling  appeared  in  answer  to  the  subpoenas,  but  refused  to  pro- 
duce the  books  or  either  of  them  so  ordered  to  be  produced. 

The  commission  thereupon,  on  the  15th  day  of  July,  1892,  pre- 
sented to  and  filed  in  the  court  below  its  petition  embodying  the 
above  facts,  and  prayed  that  an  order  be  made  requiring  and  com- 
manding Brimson,  Keefe,  and  Stirling  to  appear  before  that  body 
and  answer  the  several  questions  propounded  by  them  and  which 
they  had  respectively  refused  to  answer,  and  requiring  Keefe  and 
Stirling  to  appear  and  produce  before  the  commission  the  stock 
books  above  referred  to  as  in  their  possession. 

The  answers  of  Brimson,  Keefe,  and  Stirling  in  the  present  pro- 
ceedings, besides  insisting  that  the  questions  propounded  to  them, 
respectively,  were  immaterial  and  irrelevant,  were  based  mainly 
upon  the  ground  that  so  much  of  the  Interstate  Commerce  Act  as 
empowered  the  commission  to  require  the  attendance  and  testimony 
of  witnesses  and  the  production  of  books,  papers,  and  documents, 
and  authorized  the  Circuit  Court  of  the  United  States  to  order 
common  carriers  or  persons  to  appear  before  the  commission  and 
produce  books  and  papers  and  give  evidence,  and  to  punish  by  pro- 


396  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

cess  for  contempt  any  failure  to  obey  such  order  of  the  court,  was 
repugnant  to  the  Constitution  of  the  United  States. 

Is  the  twelfth  section  of  the  act  unconstitutional  and  void,  so  far 
as  it  authorizes  or  requires  the  Circuit  Courts  of  the  United  States 
to  use  their  process  in  aid  of  inquiries  before  the  commission  ?  The 
court  recognizes  the  importance  of  this  question,  and  has  bestowed 
upon  it  the  most  careful  consideration. 

Interpreting  the  Interstate  Commerce  Act  as  applicable,  and  as 
intended  to  apply,  only  to  matters  involved  in  the  regulation  of 
commerce,  and  which  Congress  may  rightfully  subject  to  investiga- 
tion by  a  commission  established  for  the  purpose  of  enforcing  that 
act,  we  are  unable  to  say  that  its  provisions  are  not  appropriate 
and  plainly  adapted  to  the  protection  of  interstate  commerce  from 
burdens  that  are  or  may  be,  directly  and  indirectly,  imposed  upon 
it  by  means  of  unjust  and  unreasonable  discriminations,  charges, 
and  preferences.  Congress  is  not  limited  in  its  employment  of 
means  to  those  that  are  absolutely  essential  to  the  accomplishment 
of  objects  within  the  scope  of  the  powers  granted  to  it.  It  is  a 
settled  principle  of  constitutional  law  that  "the  government  which 
has  a  right  to  do  an  act,  and  has  imposed  on  it  the  duty  of  perform- 
ing that  act,  must,  according  to  the  dictates  of  reason,  be  allowed 
to  select  the  means;  and  those  who  contend  that  it  may  not  select 
any  appropriate  means,  that  one  particular  mode  of  effecting  the 
object  is  excepted,  take  upon  themselves  the  establishing  that 
exception."    4  Wheat.  316,  409. 

'An  adjudication  that  Congress  could  not  establish  an  adminis- 
trative body  with  authority  to  investigate  the  subject  of  interstate 
commerce  and  with  power  to  call  witness  before  it,  and  to  require 
the  production  of  books,  documents,  and  papers  relating  to  that 
subject,  would  go  far  towards  defeating  the  object  for  which  the 
people  of  the  United  States  placed  commerce  among  the  States 
under  national  control.  All  must  recognize  the  fact  that  the  full 
information  necessary  as  a  basis  of  intelligent  legislation  by  Con. 
gress  from  time  to  time  upon  the  subject  of  interstate  commerce 
cannot  be  obtained,  nor  can  the  rules  established  for  the  regulation 
of  such  commerce  be  efficiently  enforced,  otherwise  than  through 
the  instrumentality  of  an  administrative  body,  representing  the 
whole  country,  always  watchful  of  the  general  interests,  and 
charged  with  the  duty  not  only  of  obtaining  the  required  informa- 
tion, but  of  compelling  by  all  lawful  methods  obedience  to  such 
rules. 


INTERSTATE    COMMERCE    COMMISSION    V.    BRIMSON.  397 

It  is  to  be  observed  that  independently  of  anj'-  question  concern- 
ing the  nature  of  the  matter  under  investigation  by  the  commis- 
sion— however  legitimate  or  however  vital  to  the  public  interests 
the  inquiry  being  conducted  by  that  body — ^the  judgment  below 
rests  upon  the  broad  ground  that  no  direct  proceeding  to  compel 
the  attendance  of  a  witness  before  the  commission,  or  to  require 
him  to  answer  questions  put  to  him,  or  to  compel  the  production  of 
books,  documents,  or  papers  in  his  possession  relating  to  the  sub- 
ject under  examination,  can  be  deemed  a  case  or  controversy  of 
which,  under  the  Constitution,  a  court  of  the  United  States  may 
take  cognizance,  even    if    such    proceeding  be  in  form    judicial. 


As  the  Circuit  Court  is  competent  under  the  law  by  which  it 
was  ordained  and  established  to  take  jurisdiction  of  the  parties, 
and  as  a  case  arises  under  the  Constitution  or  laws  of  the  United 
States  when  its  decision  depends  upon  either,  why  is  not  this  pro- 
ceeding judicial  in  form  and  instituted  for  the  determination  of 
distinct  issues  between  the  parties,  as  defined  by  formal  pleadings, 
a  case  or  controversy  for  judicial  cognizance,  within  the  meaning 
of  the  Constitution?  It  must  be  so  regarded,  unless,  as  is  con- 
tended, Congress  is  without  power  to  provide  any  method  for  en- 
forcing the  statute  or  compelling  obedience  to  the  lawful  orders  of 
the  commission,  except  through  criminal  prosecutions  or  by  civil 
actions  to  recover  penalties  imposed  for  non-compliance  with  sucH 
orders.  But  no  limitation  of  that  kind  upon  the  power  of  Congress 
to  regulate  .commerce  among  the  States  is  justified  either  by  the 
letter  or  the  spirit  of  the  Constitution.  Any  such  rule  of  consti- 
tutional interpretation,  if  applied  to  all  the  grants  of  power  made 
to  Congress,  would  defeat  the  principal  objects  for  which  the 
Constitution  was  ordained.  As  the  issues  are  so  presented  that  the 
judicial  power  is  capable  of  acting  on  them  finally  as  between  the 
parties  before  the  court,  we  cannot  adjudge  that  the  mode  pre- 
scribed for  enforcing  the  lawful  orders  of  the  Interstate  Commis- 
sion is  not  calculated  to  attain  the  object  for  which  Congress  was 
given  power  to  regulate  interstate  commerce.  It  cannot  be  so  de- 
clared unless  the  incompatibility  between  the  Constitution  and  the 
act  of  Congress  is  clear  and  strong.  Fletcher  v.  Peck,  6  Craneh 
87,  128.  In  accomplishing  the  objects  of  a  power  granted  to  it, 
Congress  may  employ  any  one  or  all  the  modes  that  are  appro- 
priate to  the  end  in  view,  taking  care  only  that  no  mode  employed 
is  inconsistent  with  the  limitations  of  the  Constitution. 


398  THE  EXERCISE  OP  OFFICIAL  AUTHORITY. 

We  are  of  opinion  that  a  judgment  of  the  Circuit  Court  of  the 
United  States  determining  the  issues  presented  by  the  petition  of 
the  Interstate  Commerce  Commission,  and  by  the  answers  of  the 
appellees,  will  be  a  legitimate  exertion  of  judicial  authority  in  a 
case  or  controversy  to  which,  by  the  Constitution,  the  judicial 
power  of  the  United  States  extends.  A  final  order  by  that  court 
dismissing  the  petition  of  the  commission,  or  requiring  the  appel- 
lees to  answer  the  questions  propounded  to  them,  and  to  produce 
the  books,  papers,  etc.,  called  for,  will  be  a  determination  of  ques- 
tions upon  which  a  court  of  the  United  States  is  capable  of  acting 
and  which  may  be  enforced  by  judicial  process.  If  there  is  any 
legal  reason  why  appellees  should  not  be  required  to  answer  the 
questions  put  to  them,  or  to  produce  the  books,  papers,  etc.,  de- 
manded of  them,  their  rights  can  be  recognized  and  enforced  by 
the  court  below  when  it  enters  upon  the  consideration  of  the  merits 
of  the  questions  presented  by  the  petition. 

In  view  of  the  conclusion  reached  upon  the  only  question  deter- 
mined by  the  Circuit  Court,  what  judgment  shall  be  here  entered? 
The  case  was  heard  below  upon  the  petition  of  the  commission  and 
the  answers  of  the  defendants.  But  no  ruling  was  made  in  respect 
to  the  materiality  of  the  evidence  sought  to  be  obtained  from  the 
defendants.  Passing  by  every  other  question  in  the  case,  the  Cir- 
cuit Court,  by  its  judgment,  struck  down  so  much  of  the  twelfth 
section  as  authorized  or  required  the  courts  to  use  their  process  in 
aid  of  inquiries  before  the  commission.  Under  the  circumstances, 
we  do  not  feel  obliged  to  go  further  at  this  time  thaq  to  adjudge, 
as  we  now  do,  that  that  section  in  the  particular  named  is  consti- 
tutional, and  to  remand  the  cause  that  the  court  below  may  proceed 
with  it  upon  the  merits  of  the  questions  presented  by  the  petition 
and  the  answers  of  the  defendants  and  make  such  determination 
thereof  as  may  be  consistent  with  law.  Any  other  course  would,  it 
might  be  apprehended,  involve  the  exercise  of  original  jurisdiction, 
and  might  possibly  work  injustice  to  one  or  the  other  of  the  parties. 

For  the  reasons  stated  the  judgment  is  reversed,  and  the  cause  is 
remanded  for  further  proceedings  in  conformity  with  this  opinion. 

Mr.  Chief  Justice  Fuller,  Mr,  Justice  Brewer,  and  Mr.  Justice 
Jackson  dissented. 

Mr,  Justice  Field  was  not  present  at  the  argument  of  this  case, 
and  took  no  part  in  the  consideration  and  decision  of  it. 


For  cases  llIuBtrative  of  the  effect  of  the  principle  of  the  separation 
of  powers  on  the  competence  of  the  legislature  to  confer  powers  on 


STUART   V.    PALMER. 


399 


Officers,  see  Gordon  v.  United  States,  117  U.  S.  697;  United  States  v. 
Deuell,  172  U.  S.  576;  Fox  v.  McDonald,  101  Ala.  51;  People  v.  Chase, 
165  111.  527;  Field  v.  Clark,  143  U.  S.  649;  Blue  v.  Beach,  155  Ind.  121; 
In  re  Kollock,  165  U.  S.  526. 


2.    Notice  to  Persons  Affected. 

STUART  V.  PALMER. 

New  York  Court  of  Appeals.    June  18,  1878. 
74  N.  Y.  183. 

This  action  was  brought  by  plaintiff  against  defendant  Pahner, 
as  collector  of  taxes  of  the  town  of  New  Lots,  to  vacate  an  assess- 
ment upon  lands  of  plaintiff  as  a  cloud  upon  the  title,  and  to  re- 
strain the  said  collector  from  collecting  the  same. 

Earl,  J.        ........  . 

We  shall  examine  and  consider  but  one  question,  which  we  deem 
decisive  of  this  case,  and  that  is  whether  the  act  authorizing  the 
assessment  was  constitutional.  If  it  was  unconstitutional,  no  valid 
assessment  could  be  made  under  it;  and  the  invalidity  of  the  as- 
sessment would  always  appear,  and  it  would  constitute  no  such 
cloud  upon  title  as  to  call  for  the  interference  of  a  court  of  equity. 
{Newell  V.  Wheeler,  48  N.  Y.  486;  Marsh  v.  City  of  Brooklyn,  59 
id.  280.) 

Here  was  an  expense  for  a  local  improvement  of  more  than  $100,- 
000.  The  commissioners  M'ere  to  ascertain  what  land  within  the 
district  of  assessment  was  benefited,  and  then  to  apportion  and 
assess  the  said  sum  upon  such  land,  in  proportion  to  benefits.  The 
assessment  when  made  was  declared  to  be  a  lien  upon  the  land,  and 
its  payment  could  be  enforced  by  a  sale  thereof. 

I  am  of  opinion  that  the  Constitution  sanctions  no  law  imposing 
such  an  assessment,  without  a  notice  to,  and  a  hearing  or  an  op- 
portunity of  a  hearing  by  the  owners  of  the  property  to  be  assessed. 
It  is  not  enough  that  the  owners  may  by  chance  have  notice,  or 
that  they  may  as  a  matter  of  favor  have  a  hearing.  The  law  must 
require  notice  to  them,  and  give  them  the  right  to  a  hearing  and 
an  opportunity  to  be  heard.  It  matters  not,  upon  the  question  of 
the  constitutionality  of  such  a  law,  that  the  assessment  has,  in  fact, 
been  fairly  apportioned.     The  constitutional  validity  of  law  is  to 


■400  THE   EXERCISE   OP   OFFICIAL   AUTHORITY. 

be  tested,  not  by  what  has  been  done  under  it,  but  by  what  may, 
by  its  authority,  be  done.  The  legislature  may  prescribe  the  kind 
of  notice  and  the  mode  in  which  it  shall  be  given,  but  it  cannot  dis- 
pense with  all  notice. 

The  legislature  can  no  more  arbitrarily  impose  an  assessment 
for  which  property  may  be  taken  and  sold,  than  it  can  render  a 
judgment  against  a  person  without  a  hearing.  It  is  a  rule  founded 
on  the  first  principles  of  natural  justice  older  than  written  consti- 
tutions, that  a  citizen  shall  not  be  deprived  of  his  life,  liberty  or 
property  without  an  opportunity  to  be  heard  in  defense  of  his 
rights,  and  the  constitutional  provision  that  no  person  shall  be  de- 
prived of  these  * '  without  due  process  of  law ' '  has  its  foundation  in 
this  rule.  This  provision  is  the  most  important  guaranty  of  per- 
sonal rights  to  be  found  in  the  Federal  or  State  Constitution.  It 
is  a  limitation  upon  arbitrary  power,  and  is  a  guaranty  against 
arbitrary  legislation.  No  citizen  shall  arbitrarily  be  deprived  of  his 
life,  liberty,  or  property.  This  the  legislature  cannot  do  nor  au- 
thorize to  be  done.  "Due  process  of  law,"  is  not  confined  to  ju- 
dicial proceedings,  but  extends  to  every  case  which  may  deprive  a 
citizen  of  life,  liberty,  or  property,  whether  the  proceeding  be 
judicial,  administrative,  or  executive  in  its  nature.  {Weimer  v 
Brueinhury,  30  Mich.  201.)  This  great  guaranty  is  always  and 
everywhere  present  to  protect  the  citizen  against  arbitrary  inter- 
ference with  these  sacred  rights. 

It  is  difficult  to  define  with  precision  the  exact  meaning  and 
scope  of  the  phrase,  "due  process  of  law."  Any  definition  which 
could  be  given,  would  probably  fail  to  comprehend  all  the  cases  to 
which  it  would  apply.  It  is  probably  wiser,  as  recently  stated  by 
Mr.  Justice  Miller  of  the  United  States  Supreme  Court,  to  leave 
the  meaning  to  be  evolved  "by  the  gradual  process  of  judicial  in- 
clusion and  exclusion,  as  the  cases  presented  for  decision  shall  re- 
quire, with  the  reasoning  on  which  such  decisions  may  be  founded." 
{Davidson  v.  Board  of  Administrators  of  New  Orleans,  17  Albany 
Law  Journal,  223.)  It  may  however  be  stated  generally  that  due 
process  of  law  requires  an  orderly  proceeding  adapted  to  the  na- 
ture of  the  case  in  which  the  citizen  has  an  opportunity  to  be 
heard,  and  to  defend,  enforce,  and  protect  his  rights.  A  hearing 
or  an  opportunity  to  be  heard,  is  absolutely  essential.    We  cannot 

conceive  of  due  process  of  law  without  this It  has 

always  been  the  general  rule  in  this  country,  in  every  system  of 
■assessment  and  taxation,  to  give  the  person  to  be  assessed  an  op- 


STUART   V.    PALMER.  401 

portunity  to  be  heard  at  some  stage  of  the  preceeding.    That  ''due 
process  of  law"  requires  this,  has  been  quite  uniformly  recognized. 

In  Butler  v.  Sup'rs  of  Saginaw  (26  Mich.  22),  where  a  tax  had 
been  imposed  for  building  drains.  Judge  Cooley  says:  **It  is  not 
the  province  of  any  mere  legislative  direction  to  impose  pecuniary 
burdens  upon  the  people.  The  power  to  tax  is  indeed  plenary; 
but  taxation  implies  public  interest  and  in  cases  like  these  now  in 
question  it  also  implies  proceedings  in  pais  in  some  of  which  the 
taxpayers  have  a  right  to  take  part  and  be  heard.  Any  attempt  to 
lay  the  burden  in  disregard  of  these  principles  must  necessarily 
be  inoperative."  In  Patten  v.  Green  (13  Cal.  325),  Baldwin,  J., 
says:  *'We  think  it  would  be  a  dangerous  precedent  to  hold  that 
an  absolute  power  resides  in  the  supervisors  to  tax  land  as  they 
may  choose  without  giving  any  notice  to  the  owner.  It  is  a  power 
liable  to  great  abuse.  The  general  principles  of  law  applicable  to 
such  tribunals  oppose  the  exercise  of  any  such  power."  In  Phila- 
delphia V.  Miller  (49  Penn.  440),  Agnew,  J.,  speaking  of  taxation, 
says:  ''Notice  or  at  least  the  means  of  knowledge  is  an  essential 
element  of  every  just  proceeding  of  which  affects  rights  of  persons 
or  property." 

In  Matter  of  Trustees  of  N.  Y.  Prot.  Epis.  Public  School  (31  N. 
Y.  574),  Judge  Denio  says:  "It  is  manifestly  proper  that  the  tax- 
payers should  have  notice  of  the  imposition  proposed  to  be  laid  upon 
them,  and  an  opportunity  for  making  suggestions  and  explanations 
to  the  proper  administrative  board  or  office. ' '  In  Ireland  v.  City  of 
Rochester  (51  Barb.  414),  Judge  James  C.  Smith,  speaking  of 
the  imposition  of  assessments,  says :  "  It  is  in  the  nature  of  a  ju- 
dicial proceeding  against  them,  and  its  effect  is  to  take  their  prop- 
erty for  public  use It  is  a  plain  principle  of  justice 

applicable  to  all  judicial  proceedings,  that  no  person  should  be  con- 
demned, or  shall  suffer  judgment  against  him  without  an  oppor- 
tunity to  be  heard;"  and  he  says  that  an  act  assessing  "persons 
without  notice  transcends  the  power  of  the  legislature,  and  is  itself 
void."  In  the  Matter  of  Ford  (6  Lans.  92)  Judge  Gilbert  says: 
That  the  duties  of  assessors  in  making  assessments  are  of  a  judicial 
nature  and  that  "it  is  a  fundamental  rule  that  in  all  judicial  or 
quasi  judicial  proceedings,  whereby  the  citizen  may  be  deprived 
of  his  property  he  shall  have  notice,  and  an  opportunity  of  a  hear- 
ing before  the  proceedings  can  become  effectual."  That  assessors 
act  judicially,  see  also,  Barhyte  v.  Shepherd  (35  N.  Y.  238),  and 
CUrk  V.  Norton  (49  N.  Y.  243). 

In  Overing  v.  Foote   (65  N.  Y.  263),  Mr.  Commissioner  Rey- 
26 


402  THE   EXERCISE   OF   OFFICIAL   AUTHORITY. 

NOLDS  says:  "The  general  theory  unoer  our  laws  lor  taxation  of 
property  is  that  the  citizen  to  be  affected  must  have  some  sort  of 
notice  of  the  proceeding  to  be  had  against  his  property  and  that 
in  some  form  he  may  be  heard,  if  wrong  is  apprehended,  before  any 
portion  of  his  estate  is  seized  for  the  support  of  government ;  and 
I  think  all  our  laws  for  the  assessment  of  property  for  the  purpose 
of  taxation  are  founded  upon  this  notion  of  justice."  In  David- 
son's Case  in  the  Supreme  Court  of  the  United  States  above  re- 
ferred to,  the  doctrine  that  the  citizen  is  entitled  to  due  process  of 
law  in  the  imposition  of  assessments,  is  distinctly  recognized.  In 
that  case,  an  assessment  upon  the  real  estate  of  the  plaintiff  in 
error  in  the  city  of  New  Orleans  for  draining  the  swamps  of  that 
city  was  resisted  in  the  State  courts  and  was  brought  by  a  writ  of 
error  to  the  United  States  Supreme  Court  on  the  ground  that  the 
proceeding  deprived  the  o\sTier  of  his  property  without  due  pro- 
cess of  law,  and  the  court  refused  to  interfere  with  the  assessment 
on  the  ground  that  the  party  assessed  had  notice  and  an  oppor- 
tunity to  appear  before  a  proper  tribunal  and  contest.  Mr.  Justice 
Bradley  writing  one  of  the  opinions  says:  "In  judging  what  is 
'due  process  of  law'  respect  must  be  had  to  the  cause  and  object  of 
the  taking,  whether  under  the  taxing  power,  the  power  of  eminent 
domain,  or  the  power  of  assessments  for  local  improvements,  or 
none  of  these;  and  if  found  to  be  suitable  or  admissible  in  a  spe- 
cial case  it  will  be  adjudged  to  be  '  due  process  of  law ; '  but  if  found 
to  be  arbitrary,  oppressive  and  unjust,  it  may  be  declared  to  be  not 
due  process  of  law."  In  Murray's  Lessee  v.  Hohoken  Land  and  Im- 
provement Co.  (18  How.  [U.  S.]  272)  it  was  held  that  the  pro- 
vision as  to  "due  process  of  law"  was  a  restraint  on  the  legislative 
as  well  as  the  executive  and  judicial  powers  of  the  government 
Judge  CoOLEY  in  his  valuable  work  on  Taxation,  at  p.  265,  says: 
*  *  In  such  proceedings,  therefore,  it  must  be  a  matter  of  the  utmost 
importance  to  the  person  assessed,  that  he  should  have  some  op- 
portunity to  be  heard,  before  the  charge  is  fully  established  against 
him ;  and  it  would  seem  to  be  a  dictate  of  strict  justice  that  the  law 
should  make  reasonable  provisions  to  secure  him  as  far  as  may  be 
against  partiality,  malice  or  oppression;"  and  on  p.  266  he  says: 
"We  should  say  that  notice  of  proceedings  in  such  cases,  and  an 
opportunity  for  a  hearing  of  some  description,  were  matters  of 
constitutional  right.  It  has  been  customary  to  provide  for  them 
as  a  part  of  what  is  due  process  of  law  for  these  cases,  and  it  is  not 
to  be  assumed  that  constitutional  provisions  carefully  framed  for 
the  protection  of  property,  were  intended,  or  could  be  construed  to 


STUART   V.    PALMER. 

sanction  legislation  under  which  officers  might  secretly  assess  one 
for  any  amount  in  their  discretion,  without  giving  him  an  oppor- 
tunity to  contest  the  justice  of  the  assessment." 

While  it  may  be  said  that  there  is  no  authority  directly  in  point, 
yet  as  has  been  shown  there  is  much  judicial  expression  in  favor  of 
the  proposition  I  am  endeavoring  to  maintain.  The  cases  must 
have  been  extremely  rare  in  this  country  where  assessments  have 
been  imposed  without  notice  or  an  opportunity  to  be  heard,  and 
hence  the  application  of  ''due  process  of  law"  to  the  subject  of 
assessments  and  taxation  has  not  been  much  discussed.  The  case 
nearest  in  point  is  Davidson's  Case.  That,  as  has  been  seen,  was  a 
case  of  assessment,  and  the  United  States  Supreme  Court  had 
jurisdiction  of  it  only  because  it  involved  the  constitutional  pro- 
vision as  to  "due  process  of  law."  If  the  citizen  in  the  case  of 
assessments  is  not  entitled  to  the  protection  of  this  constitutional 
provision  then  the  court  would  have  dismissed  that  case  on  that 
ground,  but  it  considered  the  case  upon  the  merits  and  decided  that 
there  was  due  process  of  law. 

No  case,  it  is  believed,  can  be  found  in  which  it  was  decided  that 
this  constitutional  guaranty  did  not  extend  to  cases  of  assessments, 
and  yet  we  may  infer  from  certain  dicta  of  judges  that  their  at- 
tention was  not  called  to  it,  or  that  they  lost  sight  of  it  in  the  cases 
which  they  were  considering.  It  has  sometimes  been  intimated 
that  a  citizen  is  not  deprived  of  his  property  within  the  meaning 
of  this  constitutional  provision  by  the  imposition  of  an  assessment. 
It  might  as  well  be  said  that  he  is  not  deprived  of  his  property  by 
a  judgment  entered  against  him.  A  judgment  does  not  take  prop- 
erty until  it  is  enforced,  and  then  it  takes  the  real  or  personal 
property  of  the  debtor.  So  an  assessment  may  generally  be  en- 
forced not  only  against  the  real  estate  upon  which  it  is  a  lien ;  but, 
as  in  this  case,  against  the  personal  property  of  the  owner  also,  and 
by  it  he  may  just  as  much  be  deprived  of  his  property,  and  in  the 
same  sense  as  the  judgment-debtor  is  deprived  of  his  by  the  judg- 
ment. 

We  are  therefore  of  opinion,  for  the  reasons  stated,  that  the  acts 
under  consideration  were  unconstitutional  and  void,  and  hence 
that  no  assessment  laid  under  them  could  be  a  cloud  upon  title  to 
land,  and  that  the  judgment  should  therefore  be  affirmed  with 
costs. 

All  concur;  Church,  Ch.  J.,  Folger  and  Miller,  JJ.,  con- 
curring in  result. 

Judgment  affirmed. 


404  THE    EXERCISE    OF    OFFICIAL    AUTHOBITY. 

See  as  to  the  power  of  the  courts  to  review  collaterally  official  de- 
terminations affecting  the  right  of  property  where  no  hearing  was  pro- 
vided by  law,  People  ex  rel.  Copcutt  v.  Board,  140  N.  Y.  1,  infra. 


CHICAGO  &c.  RAILWAY  CO.  V.  MINNESOTA. 

Supreme  Court  of  the  United  States.    October,  1889. 
134  United  States  418. 

This  was  a  writ  of  error  to  review  a  judgment  of  the  Supreme 
Court  of  the  State  of  Miunesota,  awarding  a  writ  of  mandamus 
against  the  Chicago,  Milwaukee  &  St.  Paul  Railway  Company. 

The  ease  arose  on  proceedings  taken  by  the  Railroad  and  Ware- 
house Commission  of  the  State  of  IMinnesota,  under  an  act  of  the 
legislature  of  that  State,  approved  March  7,  1887,  General  Laws  of 
1887,  c.  10,  entitled  "An  act  to  regulate  common  carriers,  and 
creating  the  Railroad  and  Warehouse  Commission  of  the  State  of 
Minnesota,  and  defining  the  duties  of  such  commission  in  relation 
to  common  carriers." 

The  ninth  section  of  that  act  creates  a  commission  to  be  known 
as  the  **  Railroad  and  Warehouse  Commission  of  the  State  of  Min- 
nesota," to  consist  of  three  persons  to  be  appointed  by  the  governor 
by  and  with  the  advice  and  consent  of  the  senate. 

The  first  section  of  the  act  declares  that  its  provisions  shall 
apply  to  any  common  carrier  **  engaged  in  the  transportation  of 
passengers  or  property  wholly  by  railroad,  or  partly  by  railroad 
and  partly  by  water,  when  both  are  used  under  a  common  control, 
management  or  arrangement,  for  a  carriage  or  shipment  from  one 
place  or  station  to  another,  both  being  within  the  State  of  Min- 
nesota. ' ' 

The  eighth  section  provides  that  every  common  carrier  subject 
to  the  provisions  of  the  act  shall  print  and  keep  for  public  inspec- 
tion schedules  of  the  charges  which  it  has  established  for  the  trans- 
portation of  property ;  that  it  shall  make  no  change  therein  except 
after  ten  days'  public  notice,  plainly  stating  the  changes  proposed 
to  be  made,  and  the  time  when  they  will  go  into  effect;  that  it 
shall  be  unlawful  for  it  to  charge  or  receive  any  greater  or  less 
compensation  than  that  so  established  and  published,  for  transport- 
ing property ;  that  it  shall  file  copies  of  its  schedules  with  the  com- 


CHICAGO  ETC.  RY.  CO.  V.  MINNESOTA.  405 

mission,  and  shall  notify  such  commission  of  all  changes  proposed 
to  be  made ;  that  in  case  the  commission  shall  find  at  any  time  that 
any  part  of  the  tariffs  of  charges  so  filed  and  published  is  in  any 
respect  unequal  or  unreasonable,  it  shall  have  the  power,  and  it  is 
authorized  and  directed,  to  compel  any  common  carrier  to  change 
the  same  and  adopt  such  charge  as  the  conunission  ''shall  declare 
to  be  equal  and  reasonable,"  to  which  end  the  commission  shall, 
in  writing,  inform  such  carrier  in  what  respect  such  tariff  of 
charges  is  unequal  and  unreasonable,  and  shall  recommend  what 
tariff  shall  be  substituted  therefor;  that  in  case  the  carrier  shall 
neglect  for  ten  days  after  such  notice  to  adopt  such  tariff  of 
charges  as  the  commission  recommends,  it  shall  be  the  duty  of  the 
latter  to  immediately  publish  such  tariff  as  it  has  declared  to  be 
equal  and  reasonable,  and  cause  it  to  be  posted  at  all  the  regular 
stations  on  the  line  of  such  carrier  in  Minnesota,  and  it  shall  be 
unlawful  thereafter  for  the  carrier  to  charge  a  higher  or  lower 
rate  than  that  so  fixed  and  published  by  the  commission ;  and  that, 
if  any  carrier  subject  to  the  provisions  of  the  act  shall  neglect 
to  publish  or  file  its  schedules  of  charges,  or  to  carry  out  such  rec- 
ommendation made  and  published  by  the  commission,  it  shall  be 
subject  to  a  writ  of  mandamus  "to  be  issued  by  any  judge  of  the 
Supreme  Court  or  of  any  of  the  District  Courts"  of  the  State,  on 
application  of  the  commission,  to  compel  compliance  with  the  re- 
quirements of  section  8  and  with  the  recommendation  of  the  com- 
mission, and  a  failure  to  comply  with  the  requirements  of  the  man- 
damus shall  be  punishable  as  and  for  contempt,  and  the  commis- 
sion may  apply  also  to  any  such  judge  for  an  injunction  against 
the  carrier  from  receiving  or  transporting  property  or  passengers 
within  the  State  until  it  shall  have  complied  with  the  require- 
ments of  section  8  and  with  the  recommendation  of  the  commission, 
and  for  any  wilful  violation  or  failure  to  comply  with  such  re- 
quirements or  such  recommendation  of  the  commission,  the  court 
may  award  such  costs,  including  counsel  fees,  by  way  of  penalty, 
on  the  return  of  said  writs  and  after  due  deliberation  thereon,  as 
may  be  just. 

On  the  22d  of  June,  1887,  The  Boards-of -Trade  Union  of  Farm- 
ington,  Northfield,  Faribault  and  Owatonna,  in  Minnesota,  filed 
with  the  commission  a  petition  in  writing,  complaining  that  the 
Chicago,  Milwaukee  &  St.  Paul  Railway  Company,  being  a  common 
carrier  engaged  in  the  trajisportation  of  property  wholly  by  rail- 
road, for  carriage  or  shipment  from  Owatonna,  Faribault,  Dundas, 
Northfield  and  Farmington,  to  the  cities  of  St.  Paul  and  Minne- 


406  THE   EXERCISE   OF    OFFICIAL   AUTHOBITT. 

apolis,  all  of  those  places  being  within  the  State  of  Minnesota,  made 
charges  for  its  services  in  the  transportation  of  milk  from  said 
Owatonna,  Faribault,  Dundas,  Northfield  and  Farmington  to  St. 
Paul  and  Minneapolis,  which  were  unequal  and  unreasonable,  in 
that  it  charged  four  cents  per  gallon  for  the  transportation  of  milk 
from  Owatonna  to  St.  Paul  and  Minneapolis,  and  three  cents  per 
gallon  from  Faribault,  Dundas,  Northfield  and  Farmington,  to  the 
said  cities;  and  that  such  charges  were  unreasonably  high,  and  sub- 
ject the  traffic  in  milk  between  said  points  to  unreasonable  preju- 
dice and  disadvantage.  The  prayer  of  the  petition  was  that  such 
rates  be  declared  unreasonable,  and  the  carrier  be  compelled  to 
change  the  same  and  adopt  such  rates  and  charges  as  the  commis- 
sion should  declare  to  be  equal  and  reasonable. 

A  statement  of  the  complaint  thus  made  was  forwarded  by  the 
conmiission,  on  the  29th  of  June,  1887,  to  the  railway  company, 
and  it  was  called  upon  by  the  commission,  on  the  6th  of  July,  1887, 
to  satisfy  the  complaint  or  answer  it  in  writing  at  the  office  of  the 
commission  in  St.  Paul,  on  the  13th  of  July,  1887. 

On  the  13th  of  July,  1887,  at  the  office  of  the  commission  in  St. 
Paul,  the  company  appeared  by  J.  A.  Chandler,  its  duly  authorized 
attorney,  and  The  Boards-of -Trade  Union  by  its  attorney,  and  the 
commission  proceeded  to  investigate  the  complaint.  An  investiga- 
tion of  the  rates  charged  by  the  company  for  its  services  in  trans- 
porting milk  from  Owatonna,  Faribault,  Dundas,  Northfield 
and  Farmington,  to  St.  Paul  and  Minneapolis,  was  made  by  the 
commission,  and  it  found  that  the  charges  of  the  company  for 
transporting  milk  from  Owatonna  and  Faribault  to  St.  Paul  and 
Minneapolis  were  three  cents  per  gallon  in  ten-gallon  cans;  that 
such  charges  were  unequal  and  unreasonable;  and  that  the  com- 
pany's tariff  of  rates  for  transporting  milk  from  Owatonna  and 
Faribault  to  those  cities,  filed  and  published  by  it  as  provided  by 
chapter  10  of  the  Laws  of  1887,  was  unequal  and  unreasonable; 
and  the  commission  declared  that  a  rate  of  2^^  cents  per  gallon  in 
ten-gallon  cans  was  an  equal  and  reasonable  rate  for  such  services. 

On  the  4th  of  August,  1887,  the  commission  made  a  report  in 
writing  which  included  the  findings  of  fact  upon  which  its  con- 
clusions were  based,  its  recommendation  as  to  the  tariff  which 
should  be  substituted  for  the  tariff  so  found  to  be  unequal  and  un- 
reasonable, and  also  a  specification  of  the  rates  and  charges  which  it 
declared  to  be  equal  and  reasonable 

This  report  was  entered  of  record,  and  a  copy  furnished  to  The 


CHICAGO  ETC.  RY.  CO.  V.  MINNESOTA.  407 

Boards-of-Trade  Union,  and  a  copy  was  also  delivered,  on  the  4th 
of  August,  1887,  to  the  company,  with  a  notice  to  it  to  desist  from 
charging  or  receiving  such  unequal  and  unreasonable  rates  for 
such  services.  The  commission  thus  informed  the  company  in  writ- 
ing in  what  respect  such  tariff  of  rates  and  charges  was  unequal 
and  unreasonable,  and  recommended  to  it  in  writing  what  tariff 
should  be  substituted  therefore,  to-wit,  the  tariff  so  found  equal 
and  reasonable  by  the  commission. 

The  company  neglected  and  refused,  for  more  than  ten  days 
after  such  notice,  to  substitute  or  adopt  such  tariff  of  charges  as  was 
recommended  by  the  commission.  The  latter  thereupon  published 
the  tariff  of  charges  which  it  had  declared  to  be  equal  and  reason- 
able, and  caused  it  to  be  posted  at  the  station  of  the  company  in 
Faribault  on  the  14th  of  October,  1887,  and  at  all  the  regular  sta- 
tions on  the  line  of  the  company  in  Minnesota  prior  to  November 
12,  1887,  and  in  all  things  complied  with  the  statute. 

On  the  6th  of  December,  1887,  the  commission,  by  the  attorney 
general  of  the  State,  made  an  application  to  the  Supreme  Court  of 
the  State  for  a  writ  of  mandamus  to  compel  the  company  to  com- 
ply with  the  recommendation  made  to  it  by  the  commission,  to 
change  its  tariff  of  rates  on  milk  from  Owatonna  and  Faribault 
to  St.  Paul  and  Minneapolis,  and  to  adopt  the  rates  declared  by 
the  commission  to  be  equal  and  reasonable 

Thereupon,  an  alternative  writ  of  mandamus  was  issued  by  the 
court,  returnable  before  it  on  the  14th  of  December,  1887. 

The  case  came  on  for  hearing  upon  the  alternative  writ  and  the 
return,  and  the  company  applied  for  a  reference  to  take  testimony 
on  the  issue  raised  by  the  allegations  in  the  application  for  the 
writ  and  the  return  thereto,  as  to  whether  the  rate  fixed  by  the 
commission  was  reasonable,  fair  and  just.  The  court  denied  the 
application  for  a  reference,  and  rendered  judgment  in  favor  of 
the  relator  and  that  a  peremptory  writ  of  mandamus  issue.  An 
application  for  a  reargument  was  made  and  denied.  The  terms  of 
the  peremptory  writ  were  directed  to  be,  that  the  company  com- 
ply with  the  requirements  of  the  recommendation  and  order  made 
by  the  commission  on  the  4th  of  August,  1887,  and  change  its 
tariff  of  rates  and  charges  for  the  transportation  of  milk  from  Owa- 
tonna and  Faribault  to  St.  Paul  and  Minneapolis,  and  substitute 
therefor  the  tariff  recommended,  published  and  posted  by  the  com- 
mission, to-wit,  the  rate  of  2i/^  cents  per  gallon  of  milk  in  ten- 


408  THE   EXEECI8E   OF   OFFICIAL   AUTHOBITY. 

gallon  cans  from  Owatonna  and  Faribault  to  St.  Paul  and  Minne- 
apolis, being  the  rates  published  by  the  commission  and  declared  to 
be  equal  and  reasonable  therefor.  Costs  were  also  adjudged  against 
the  company.  To  review  this  judgment,  the  company  brought  a 
writ  of  error. 

Mr.  Justice  Blatchford,  after  stating  the  case  as  above  report- 
ed, delivered  the  opinion  of  the  court. 

The  opinion  of  the  Supreme  Court  of  Minnesota  is  reported  in 
38  Minnesota,  281.  In  it  the  court  in  the  first  place  construed 
the  statute  on  the  question  as  to  whether  the  court  itself  had  juris- 
diction to  entertain  the  proceeding,  and  held  that  it  had.  Of 
course,  we  cannot  review  this  decision. 

It  next  proceeded  to  consider  the  question  as  to  the  nature  and 
extent  of  the  powers  granted  to  the  commission  by  the  statute  in 
the  matter  of  fixing  the  rates  of  charges.  On  that  subject  it  said : 
"It  seems  to  us  that,  if  language  means  anything,  it  is  perfectly 
evident  that  the  expressed  intention  of  the  legislature  is  that  the 
rates  recommended  and  published  by  the  commission  (assuming 
that  they  have  proceeded  in  the  manner  pointed  out  by  the  act) 
should  be  not  simply  advisory,  nor  merely  prima  facie  equal  and 
reasonable,  but  final  and  conclusive  as  to  what  are  lawful  or  equal 
and  reasonable  charges;  that,  in  proceedings  to  compel  compliance 
with  the  rates  thus  published,  the  law  neither  contemplates  nor 
allows  any  issue  to  be  made  or  inquiry  had  as  to  their  equality  and 
reasonableness  in  fact.  Under  the  provisions  of  the  act,  the  rates 
thus  published  are  the  only  ones  that  are  lawful,  and,  therefore,  in 
contemplation  of  law,  the  only  ones  that  are  equal  and  reasonable ; 
and,  hence,  in  proceedings  like  the  present,  there  is,  as  said  before, 
no  fact  to  traverse,  except  the  violation  of  the  law  in  refusing  com- 
pliance with  the  recommendations  of  the  commission.  Indeed,  the 
language  of  the  act  is  so  plain  on  that  point  that  argument  can 
add  nothing  to  its  force. ' ' 

It  then  proceeded  to  examine  the  question  of  the  validity  of  the 
act  under  the  constitution  of  Minnesota,  as  to  whether  the  legis- 
lature was  authorized  to  confer  upon  the  commission  the  powers 
given  to  the  latter  by  the  statute.  It  held  that,  as  the  legislature 
had  the  power  itself  to  regulate  charges  by  railroads,  it  could 
delegate  to  a  commission  the  power  of  fixing  such  charges,  and 
could  make  the  judgment  or  determination  of  the  commission  as 
to  what  were  reasonable  charges  final  and  conclusive. 

The  construction  put  upon  the  statute  by  the  Supreme  Court  of 


CHICAGO  ETC.  RY.  CO.  V.  MINNESOTA.  409 

Minnesota  must  be  accepted  by  this  court,  for  the  purposes  of  the 
present  case,  as  conclusive  and  not  to  be  reexamined  here  £is  to 
its  propriety  or  accuracy.  The  Supreme  Court  authoritatively  de- 
clares that  it  is  the  expressed  intention  of  the  legislature  of  Minne- 
sota, by  the  statute,  that  the  rates  recommended  and  published 
by  the  conmiission,  if  it  proceeds  in  the  manner  pointed  out  by  the 
act,  are  not  simply  advisory,  nor  merely  prima  facie  equal  and  rea- 
sonable, but  final  and  conclusive  as  to  what  are  equal  and  reason- 
ble  charges ;  that  the  law  neither  contemplates  nor  allows  any  issue 
to  be  made  or  inquiry  to  be  had  as  to  their  equality  or  reasonable- 
ness in  fact ;  that,  under  the  stautc,  the  rates  published  by  the  com- 
mission are  the  only  ones  that  are  lawful,  and,  therefore,  in  con- 
templation of  law  the  only  ones  that  are  equal  and  reasonable; 
and  that,  in  a  proceeding  for  a  mandamus  under  the  statute,  there 
is  no  fact  to  traverse  except  the  violation  of  law  in  not  complying 
with  the  recommendations  of  the  commission.  In  other  words,  al- 
though the  railroad  company  is  forbidden  to  establish  rates  that 
are  not  equal  and  reasonable,  there  is  no  power  in  the  courts  to 
stay  the  hands  of  the  commission,  if  it  chooses  to  establish  rates  that 
are  unequal  and  unreasonable. 

This  being  the  construction  of  the  statute  by  which  we  are  bound 
in  considering  the  present  case,  we  are  of  opinion  that,  so  con- 
strued, it  conflicts  with  the  Constitution  of  the  United  States  in 
the  particulars  complained  of  by  the  railroad  company.  It  de- 
prives the  company  of  its  right  to  a  judicial  investigation,  by  due 
process  of  law,  under  the  forms  and  with  the  machinery  provided 
by  the  wisdom  of  successive  ages  for  the  investigation  judicially 
of  the  truth  of  a  matter  in  controversy,  and  substitutes  therefor,  as 
an  absolute  finality,  the  action  of  a  railroad  commission  which,  in 
view  of  the  powers  conceded  to  it  by  the  state  court,  cannot  be  re- 
garded as  clothed  with  judicial  functions  or  possessing  the  machin- 
ery of  a  court  of  justice. 

No  hearing  is  provided  for,  no  summons  or  notice 

to  the  company  before  the  conunission  has  found  what  it  is  to  find 
and  declared  what  it  is  to  declare,  no  opportunity  provided  for  the 
company  to  introduce  witnesses  before  the  commission,  in  fact, 
nothing  which  has  the  semblance  of  due  process  of  law;  and  al- 
though, in  the  present  case,  it  appears  that,  prior  to  the  decision 
of  the  commission,  the  company  appeared  before  it  by  its  agent, 
and  the  commission  investigated  the  rates  charged  by  the  company 
for  transporting  milk,  yet  it  does  not  appear  what  the  character 
of  the  investigation  was  or  how  the  result  was  arrived  at. 


410  THE   EXERCISE   OF   OFFICIAL   AUTHOBITT. 

By  the  second  section  of  the  statute  in  question,  it  is  provided 
that  all  charges  made  by  a  common  carrier  for  the  transportation 
of  passengers  or  property  shall  be  equal  and  reasonable.  Under 
this  provision,  the  carrier  has  a  right  to  make  equal  and  reasonable 
charges  for  such  transportation.  In  the  present  case,  the  return 
alleged  that  the  rate  of  charge  fixed  by  the  commission  was  not 
equal  or  reasonable,  and  the  Supreme  Court  held  that  the  statute 
deprived  the  company  of  the  right  to  show  that  judicially.  The 
question  of  the  reasonableness  of  a  rate  of  charge  for  transporta- 
tion by  a  railroad  company,  involving  as  it  does  the  element  of 
reasonableness  both  as  regards  the  company  and  as  regards  the 
public,  is  eminently  a  question  for  judicial  investigation,  requir- 
ing due  process  of  law  for  its  determination.  If  the  company  is 
deprived  of  the  power  of  charging  reasonable  rates  for  the  use  of 
its  property,  and  such  deprivation  takes  place  in  the  absence  of  an 
investigation  by  judicial  machinery,  it  is  deprived  of  the  lawful 
use  of  its  property,  and  thus,  in  substance  and  effect,  of  the  prop- 
erty itself,  without  due  process  of  law  and  in  violation  of  the  Con- 
stitution of  the  United  States ;  and  in  so  far  as  it  is  thus  deprived, 
while  other  persons  are  permitted  to  receive  reasonable  profits  upon 
their  invested  capital,  the  company  is  deprived  of  the  equal  pro- 
tection of  the  laws. 


The  issuing  of  the  peremptory  writ  of  mandamus  in  this  case 
was,  therefore,  unlawful,  because  in  violation  of  the  Constitution 
of  the  United  States;  and  it  is  necessary  that  the  relief  adminis- 
tered in  favor  of  the  plaintiff  in  error  should  be  a  reversal  of  the 
judgment  of  the  Supreme  Court  awarding  that  writ,  and  an  in- 
struction for  further  proceedings  by  it  not  inconsistent  with  the 
opinion  of  this  court. 

In  view  of  the  opinion  delivered  by  that  court,  it  may  be  im- 
possible for  any  further  proceedings  to  be  taken  other  than  to  dis- 
miss the  proceeding  for  a  mandamus,  if  the  court  should  adhere  to 
its  opinion  that,  under  the  statute,  it  cannot  investigate  judicially 
the  reasonableness  of  the  rates  fixed  by  the  commission.  Still,  the 
question  will  be  open  for  review;  and 

The  judgment  of  this  court  is,  that  the  judgment  of  the  Supreme 
Court  of  Minnesota,  entered  May  4,  1888,  awarding  a  peremp- 
twy  writ  of  mandamus  in  this  case,  he  reversed,  and  the  case  be 
remanded  to  that  court,  with  an  instruction  for  further  proceed- 
ings not  inconsistent  with  the  opinion  of  this  court. 


HEALTH    DEPARTMENT    V.    TRINITY    CHURCH.  411 

See  Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154  U.  S.  362.  which  would 
seem  to  hold  that  a  rate  fixed  in  accordance  with  the  law  by  an  admin- 
istrative authority  after  a  hearing,  provided  by  law,  of  the  parties  inter- 
ested is  final  and  conclusive,  except  where  it  is  so  low  as  to  result  In 
the  confiscation  of  the  property  concerned. 


HEALTH  DEPARTMENT  OF  NEW  YORK  V.  TRINITY 
CHURCH,  &c. 

Court  of  Appeals  of  New  York.    February,  1895 
145  N.  Y.  32. 

Appeal  from  order  of  the  General  Term  of  the  Court  of  Com- 
mon Pleas  for  the  city  and  county  of  New  York,  made  January  4, 
1892,  which  sustained  exceptions  taken  by  defendant  to  a  verdict 
in  favor  of  plaintiff  directed  by  the  court  and  granted  a  new  trial. 

Peckham,  J.  The  recovery  in  this  case  is  founded  upon  that  por- 
tion of  the  Consolidation  Act  which  requires  that  all  houses  of  a 
certain  description,  upon  direction  of  the  board  of  health,  shall 
be  supplied  with  Croton  or  other  water  in  sufficient  quantity  at  one 
or  more  places  on  each  floor,  occupied,  or  intended  to  be  occupied, 
by  one  or  more  families.  The  defendant,  among  other  things, 
alleges  as  a  defense  that  the  order  of  the  board  of  health  directing 
the  defendant  to  furnish  the  water  as  provided  by  the  statute  was 
made  without  notice  to  it,  and  that,  as  it  could  not  be  complied 
with  excepting  by  the  expenditure  of  a  considerable  sum  of  money, 
the  result  would  be  to  deprive  the  defendant  of  its  property  with- 
out a  hearing  and  an  opportunity  to  show  what  defense  it  might 
have,  and  that  in  fact  it  deprived  defendant  of  its  property  with- 
out due  process  of  law.  There  was  no  arrangement  in  either  of 
these  houses  in  question  for  the  supplying  of  the  Croton  or  other 
water  to  the  occupants  of  each  floor  at  the  time  when  the  order  of 
the  board  of  health  was  made ;  such  order  could  not,  therefore,  be 
complied  with  on  the  part  of  the  defendant  without  the  expendi- 
ture of  money  for  that  purpose.  That  fact  must  be  assumed,  and 
even  upon  that  assumption  we  do  not  think  the  act  is  invalid  on  the 
alleged  ground  that  it  deprives  the  defendant,  if  enforced,  of  its 
property  without  due  process  of  law.  The  act  must  be  sustained, 
if  at  all,  as  an  exercise  of  the  police  power  of  the  state.    It  has 


412  THE    EXEBCI8E    OF    OFFICIAL    AUTHORITY. 

frequently  been  said  that  it  is  ditBcult  to  give  any  exact  definition 
which  shall  properly  limit  and  describe  such  power.  It  must  be 
exercised  subject  to  the  provisions  of  both  the  federal  and  state 
constitutions,  and  the  law  passed  in  the  exercise  of  such  power  must 
tend  in  a  degree  that  is  perceptible  and  clear  toward  the  preser- 
vation of  the  lives,  the  health,  the  morals  and  the  welfare  of  the 
community,  as  those  words  have  been  used  and  construed  in  many 
cases  heretofore  decided.  Numerous  cases  have  arisen  in  this  state 
where  the  power  of  the  legislature  was  questioned,  and  where  the 
exercise  of  that  power  was  affirmed  or  denied  for  the  reasons  given 
therein. 

The  act  must  tend  in  some  appreciable  and  clear  way  towards 
the  accomplishment  of  some  one  of  the  purposes  which  the  legis- 
lature has  the  right  to  accomplish  under  the  exercise  of  the  police 
power.  It  must  not  be  exercised  ostensibly  in  favor  of  the  pro- 
motion of  some  such  object  while  really  it  is  an  evasion  thereof 
and  for  a  distinct  and  totally  different  purpose,  and  the  courts 
will  not  be  prevented  from  looking  at  the  true  character  of  the  act, 
as  developed  by  its  provisions,  by  any  statement  in  the  act  itself 
or  in  its  title  showing  that  it  was  ostensibly  passed  for  some  object 
within  the  police  power.  The  court  must  be  enabled  to  see  some 
clear  and  real  connection  between  the  assumed  purpose  of  the  law 
and  the  actual  provisions  thereof,  and  it  must  see  that  the  latter  do 
tend  in  some  plain  and  appreciable  manner  towards  the  accom- 
plishment of  some  of  the  objects  for  which  the  legislature  may  use 
this  power. 

First.  Assuming  that  this  act  is  a  proper  exercise  of  the  power 
in  its  general  features  we  do  not  think  it  can  be  regarded  as  in- 
valid because  of  the  fact  that  it  will  cost  money  to  comply  with  the 
order  of  the  board  for  which  the  owner  is  to  receive  no  compensa- 
tion or  because  the  board  is  entitled  to  make  the  order  under  the 
provisions  of  the  act  without  notice  to  and  a  hearing  of  the  de- 
fendant. As  to  the  latter  objection  it  may  be  said  that  in  enacting 
what  shall  be  done  by  the  citizen  for  the  purpose  of  promoting  the 
public  health  and  safety  it  is  not  usually  necessary  to  the  validity 
of  legislation  upon  that  subject  that  he  shall  be  heard  before  he 
is  bound  to  comply  with  the  direction  of  the  legislature.  People 
ex  rel  Copcutt  v.  Board  of  Health,  140  N.  Y.  1,  6.  The  legislature 
has  power  and  has  exercised  it  in  countless  instances  to  enact  gen- 
eral laws  upon  the  subject  of  the  public  safety  or  health  without 
providing  that  the  parties  who  are  to  be  affected  by  those  laws  shall 


HEALTH    DEPARTMENT    V.    TRINITY    CHURCH.  413 

first  be  heard  before  they  shall  take  effect  in  any  particular  case. 
So  far  as  this  objection  of  want  of  notice  is  concerned  the  case  is 
not  materially  altered  in  principle  from  what  it  would  have  been 
if  the  legislature  had  enacted  a  general  law  that  all  owners  of  tene- 
ment houses  should,  within  a  certain  period  named  in  the  act,  fur- 
nish the  water  as  directed.  Indeed,  this  act  does  contain  such 
a  provision,  but  the  plaintiff  has  not  proceeded  under  it.  If  in 
such  case  the  enforcement  of  the  direct  command  of  the  legislature 
were  not  to  be  preceded  by  any  hearing  on  the  part  of  any  owner 
of  a  tenement  house,  no  provision  of  the  state  or  federal  consti- 
tution Avould  be  violated.  The  fact  that  the  legislature  has  chosen 
to  delegate  a  certain  portion  of  its  powers  to  the  board  of  health, 
and  to  enact  that  the  owners  of  certain  tenement  houses  should  be 
compelled  to  furnish  this  water  after  the  board  of  health  had  so 
directed,  would  not  alter  the  principle,  nor  would  it  be  necessary 
to  provide  that  the  board  should  give  notice  and  afford  a  hearing 
to  the  owner  before  it  made  such  order.  I  have  never  understood 
that  it  was  necessary  that  any  notice  should  be  given  under  such 
circumstances  before  a  provision  of  this  nature  could  be  carried 
out. 

As  to  the  other  objections,  no  one  would  contend  that  the  amount 
of  the  expenditure  which  an  act  of  this  kind  may  cause,  whether 
with  or  without  a  hearing,  is  within  the  absolute  discretion  of  the 
legislature.  It  cannot  be  claimed  that  it  would  have  the  right,  even 
under  the  exercise  of  the  police  power,  to  command  the  doing  of 
some  act  by  the  owner  of  the  property  and  for  the  purpose  of  carry- 
ing out  some  provision  of  law,  which  act  could  only  be  performed 
by  the  expenditure  of  a  large  and  unreasonable  amount  of  money 
on  the  part  of  the  owner.  If  such  excessive  demand  were  made 
the  act  would  without  doubt  violate  the  constitutional  rights  of  the 
individual.  The  exaction  must  not  alone  be  reasonable  when  com- 
pared with  the  amount  of  the  work  or  the  character  of  the  im- 
provement demanded.  The  improvement  or  work  must  in  itself 
be  a  reasonable,  proper  and  fair  exaction  when  considered  witH 
reference  to  the  object  to  be  attained.  If  the  expense  to  the  indi- 
vidual under  sucll  circumstances  would  amount  to  a  very  large  and 
unreasonable  sum,  that  fact  would  be  a  most  material  one  in  de- 
ciding whether  the  method  or  means  adopted  for  the  attainment  of 
the  main  object  were  or  were  not  an  unreasonable  demand  on  the 
individual  for  the  benefit  of  the  public.  Of  this  the  courts  must, 
within  proper  limits,  be  the  judges. 


414  THE   EXEBCISE   OP   OFFICIAL   AUTHORITY. 

Laws  and  regulations  of  a  police  nature,  though  they  may  dis- 
turb the  enjoyment  of  individual  rights,  are  not  unconstitutional, 
though  no  provision  is  made  for  compensation  for  such  disturb- 
ances. They  do  not  appropriate  private  property  for  public  use, 
but  simply  regulate  its  use  and  enjoyment  by  the  owner.  If  he 
suffer  injury,  it  is  either  damnum  absque  injuria,  or,  in  the  theory 
of  the  law,  he  is  compensated  for  it  by  sharing  in  the  general  bene^ 
fits  which  the  regulations  are  intended  and  calculated  to  secure. 
Dillon  on  Mun.  Corp.  (4th  Ed.)  sec.  141  and  note  2;  Com.  v.  Al- 
ger, 7  Cush.  83,  84,  86;  Baker  v.  City  of  Boston,  12  Pick.  184,  193; 
Clark  V.  Mayor  of  Syracuse,  13  Barb.  32,  36.  The  state,  or  its 
agent  in  enforcing  its  mandate,  takes  no  property  of  the  citizen 
when  it  simply  directs  the  making  of  these  improvements.  As  a 
result  thereof  the  individual  is  put  to  some  expense  in  complying 
with  the  law,  by  paying  mechanics  and  other  laborers  to  do  that 
which  the  law  enjoins  upon  the  owner,  but  so  long  as  the  amount 
exacted  is  limited  as  stated,  the  property  of  the  citizen  has  not 
been  taken  in  any  constitutional  sense  without  due  process  of  law. 

Instances  are  numerous  of  the  passage  of  laws  which  entail  ex- 
pense on  the  part  of  those  who  must  comply  with  them  and  where 
such  expense  must  be  borne  by  them  without  any  hearing  or  com- 
pensation because  of  the  provisions  of  the  law.  Thorpe  v.  E.  R.  Co., 
27  Vt.  140-152. 

The  citizen  cannot,  under  this  act,  be  punished  in  any  way,  nor 
can  any  penalty  be  recovered  from  him  for  an  alleged  non-compli- 
ance with  any  of  its  provisions  or  with  any  order  of  the  board  of 
health  without  a  trial.  The  punishment  or  penalties  provided  for 
in  section  665  cannot  be  enforced  without  a  trial  under  due  proc- 
ess of  law,  and  upon  such  a  trial  he  has  an  opportunity  to  show 
whatever  facts  would  constitute  a  defense  to  the  charge;  to  show, 
in  other  words,  that  he  did  not  violate  the  statute  or  the  order  of 
the  board  or  that  the  statute  itself  or  the  order  was  unreasonable 
and  illegal.  He  might  show  that  the  house  in  question  was  not  a 
tenement  house  within  the  provision  of  the  act,  or  that  there  was 
a  supply  of  water  as  provided  for  by  the  act,  or  any  other  fact 
which  would  show  that  he  had  not  been  guilty  of  an  offense  with 
regard  to  the  act.    City  of  Salem  v.  B.  R.  Co.,  98  Mass.,  431,  447. 

The  mere  fact,  however,  that  the  law  cannot  be  enforced  without 
causing  expense  to  the  citizen  who  comes  within  its  provisions  fur- 
nishes no  constitutional  obstacle  to  such  enforcement  even  with- 
out previous  notice  to  and  a  hearing  of  the  citizen.    "What  is  the 


HEALTH    DEPAETMENT    V.    TRINITY    CHURCH.  415 

propriety  of  a  hearing  and  what  would  be  its  purpose  ?  His  prop- 
erty is  not  taken  without  due  process  of  law,  within  any  constitu- 
tional sense,  when  the  enforced  compliance  with  certain  provisions 
of  the  statute  may  result  in  some  reasonable  expense  to  himself. 
Any  defense  which  he  may  have  is  available  upon  any  attempt  to 
punish  him  or  to  enforce  the  provisions  of  the  law. 

We  do  not  think  that  the  cost  of  making  the  improvements 
called  for  by  this  act  exceeds  the  limits  which  have  been  defined, 
assuming  the  amount  thereof  which  the  defendant  offered  to  prove. 

We  are,  therefore,  of  the  opinion  that  the  act,  if 

otherwise  valid,  is  not  open  to  the  objection  that  it  violates  either 
the  federal  or  state  constitution  in  the  way  of  depriving  the  de- 
fendant of  its  property  without  due  process  of  law. 

Second,  We^think  that  the  act  is  valid  as  an  exercise  of  the 
police  power  \mh  respect  to  the  public  health  and  also  with  re- 
spect to  the  public  safety  regarding  fires  and  their  extinguish- 
ment. We  cannot  say  as  a  legal  proposition  that  it  tends  only  to 
the  convenience  of  the  tenants  in  regard  to  their  use  of  water.  We 
cannot  say  that  it  has  no  fair,  and  plain,  and  direct  tendency 
towards  the  promotion  of  the  public  health  or  towards  the  more 
speedy  extinguishment  of  fires  in  crowded  tenement  houses.    .    .    . 

The  learned  counsel  for  the  defendant  asks  where  this  kind  of 
legislation  is  to  stop.  Would  it  be  contended  that  the  owners  of 
such  houses  could  be  compelled  to  furnish  each  room  with  a  bath 
tub  and  all  the  appliances  that  are  to  be  found  in  a  modern  and 
well-appointed  hotel  ?  Is  there  to  be  a  bath  room  and  water-closet 
to  each  room  and  every  closet  to  be  a  model  of  the  very  latest  im- 
improvement  ?  To  which  I  should  answer,  certainly  not.  That  would 
be  so  clearly  unreasonable  that  no  court  in  my  belief  could  be 
found  which  would  uphold  such  legislation,  and  it  seems  to  me 
equally  clear  that  no  legislature  could  be  found  that  would  enact 

it We  feel  that  we  ought  to  inspect  with  very  great 

care  any  law  in  regard  to  tenement  houses  in  New  York  and  to 
hesitate  before  declaring  any  such  law  invalid  so  long  as  it  seems 
to  tend  plainly  in  the  direction  we  have  spoken  of  and  to  be  rea- 
sonable in  its  provisions.  If  we  can  see  that  the  object  of  this  law 
is  without  doubt  the  promotion  or  the  protection  of  the  health  of 
the  inmates  of  these  houses  or  the  preservation  of  the  houses  them- 
selves and  consequently  much  other  property  from  loss  or  destruc- 
tion by  fire,  and  if  the  act  can  be  enforced  at  a  reasonable  cost  to 


416  THE   EXEBCISE   OF   OFFICIAL   AUTHOBITY. 

the  owner,  then  in  our  opinion  it  ought  to  be  sustained.  We  be- 
lieve this  statute  fulfills  these  conditions.  We  think  that  in  this 
case  it  is  not  a  mere  matter  of  convenience  of  the  tenants  as  to 
where  they  shall  obtain  their  supply  of  water.  Simple  convenience 
we  admit  would  not  authorize  the  passage  of  this  kind  of  legisla- 
tion. But  where  it  is  obvious  that  without  the  convenience  of  an 
appliance  for  the  supply  of  water  on  the  various  floors  of  these 
tenement  houses,  there  will  be  scarcely  any  but  the  most  limited 
and  scanty  use  of  the  water  itself,  which  must  be  carried  from 
the  yards  below,  and  when  we  must  admit  that  the  free  use  of 
water  tends  directly  and  immediately  towards  the  sustaining  of 
the  health  of  the  individual  and  the  prevention  of  disease  arising 
from  filth  either  in  the  person  or  in  the  surrounding  habitation, 
then  we  must  conclude  that  it  is  more  than  a  mere  matter  of  con- 
venience in  the  use  of  water  which  is  involved  in  the  decision  of 
this  case.  The  absence  of  the  water  tends  directly  towards  the 
breeding  of  disease,  and  its  presence  is  healthful  Imd  humanizing. 

Upon  the  whole  we  think  the  order  of  the  General  Term  of  the 
Court  of  Common  Pleas  should  be  reversed,  and  judgment  directed 
to  be  entered  upon  the  verdict  ordered  in  the  trial  court,  with  costs. 

Bartlett,  J.    (dissenting). 


3.     Unrestrained  Discretion. 

WILSON  V.  EUREKA  CITY. 

Supreme  Court  of  the  United  States.    October,  1898. 
173  United  States,  32. 

Section  12  of  ordinance  Number  10  of  Eureka  City,  Utah,  pro- 
vided as  follows: 

"No  person  shall  move  any  building  or  frame  of  any  building, 
into  or  upon  any  of  the  public  streets,  lots  or  squares  of  the  city, 
or  cause  the  same  to  be  upon,  or  otherwise  to  obstruct  the  free  pass- 
age of  the  streets,  without  the  written  permission  of  the  mayor,  or 
president  of  the  city  council,  or  in  their  absence  a  councillor.  A' 
violation  of  this  section  shall,  on  conviction,  subject  the  offender 
to  a  fine  of  not  to  exceed  twenty-five  dollars." 


WILSON  V.  EUREKA   CITY.  417 

The  plaintiff  in  error  was  tried  for  a  violation  of  the  ordinance 
in  the  justice's  court  of  the  city.  He  was  convicted  and  sentenced 
to  pay  a  fine  of  twenty-five  dollars.  He  appealed  to  the  district 
court  of  the  first  judicial  district  of  the  Territory  of  Utah. 

On  the  admission  of  Utah  into  the  Union  the  case  was  trans- 
ferred to  the  fifth  district  court  of  Juab  County,  and  there  tried 
on  the  24th  of  October,  1896,  by  the  court  without  a  jury,  by  con- 
sent of  the  parties. 

Section  12,  supra,  was  offered  and  admitted  in  evidence.  Plain- 
tiff in  error  objected  to  it  on  the  ground  that  it  was  repugnant  to 
section  1  of  article  14  of  the  Constitution  of  the  United  States,  in 
that  it  delegated  an  authority  to  the  mayor  of  the  city,  or  in  his 
absence  to  a  councillor. 

There  was  also  introduced  in  evidence  an  ordinance  establish- 
ing fire  limits  within  the  city,  providing  that  no  wooden  buildings 
should  be  ereete^  within  such  limits  except  by  the  permission  of  the 
committee  on  biulding,  and  providing  further  for  the  alteration  and 
repair  of  wooden  buildings  already  erected 

The  evidence  showed  that  the  plaintiff  in  error  was  the  owner 
of  a  wooden  building  of  the  dimensions  of  twenty  by  sixteen  feet, 
which  was  used  as  a  dwelling  house.  It  was  constructed  prior  to 
the  enactment  of  the  ordinances  above  mentioned.  The  evidence 
further  showed  that  plaintiff  in  error  applied  to  the  mayor  for 
permission  to  move  the  building  along  and  across  Main  street  in 
the  city,  to  another  place  within  the  fire  limits.  The  mayor  re- 
fused the  permission,  stating  that  if  the  desire  was  to  move  it  out- 
side of  the  fire  limits  permission  would  be  granted.  Notwithstand- 
ing the  refusal,  the  plaintiff  in  error  moved  the  building,  using 
blocks  and  tackle  and  rollers,  and  in  doing  so  occupied  the  time 
between  eleven  A.  M.  and  three  P.  M.  At  the  place  where  the 
building  stood  originally  the  street  was  fifty  feet  from  the  houses 
on  one  side  to  those  on  the  other — part  of  the  space  being  occupied 
by  sidewalks,  and  the  balance  by  the  traveling  highway.  The  dis- 
tance of  removal  was  two  hundred  and  six  feet  long  and  across 
Main  street.  Eureka  City  was  and  is  a  mining  town,  and  had  and 
has  a  population  of  about  two  thousand.  It  was  admitted  that  the 
building  was  moved  with  reasonable  diligence. 

The  plaintiff  in  error  was  again  convicted.  From  the  judgment 
of  conviction  he  appealed  to  the  Supreme  Court  of  the  State,  which 
court  affirmed  the  judgment,  and  to  the  judgment  of  affirmance 
this  writ  of  error  is  directed. 

Eureka  City  has  no  special  charter,  but  was  incorporated  under 

27 


418  THE   EXEBCI8E   OF   OFFICIAL   ATJTHOBITT. 

the  general  ineorporation  act  of  March  8,  1888,  and  among  the 
powers  conferred  by  it  on  city  councils  are  the  following : 

"10.  To  regulate  the  use  of  streets,  alleys,  avenues,  sidewalks, 
crosswalks,  parks  and  public  grounds. 

"11,  To  prevent  and  remove  obstructions  and  encroachments 
upon  the  same." 

The  error  assigned  is  that  the  ordinance  is  repugnant  to  the 
Fourteenth  Amendment  of  the  Constitution  of  the  United  States, 
because  "thereby  the  citizen  is  deprived  of  his  property  without 
due  process  of  law,"  and  "the  citizen  is  thereby  denied  the  equal 
protection  of  the  law." 

Mr.  Justice  McKenna,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

Whether  the  provisions  of  the  charter  enabled  the  council  to  dele- 
gate any  power  to  the  mayor  is  not  within  our  competency  to  de- 
cide. That  is  necessarily  a  state  question,  and  w^are  confined  to 
a  consideration  of  whether  the  power  conferred  ooes  or  does  not 
violate  the  Constitution  of  the  United  States. 

It  is  contended  that  it  does,  because  the  ordinance  commits  the 
rights  of  the  plaintiff  in  error  to  the  unrestrained  discretion  of  a 
single  individual,  and  thereby,  it  is  claimed,  removes  them  from 
the  domain  of  law.  To  support  the  contention  the  following  cases 
are  cited :  Matter  of  Frazee,  63  ^fichigan,  396 ;  State  ex  rel.  Oar- 
rabad  v.  Bering,  84  Wisconsin,  585;  Anderson  v.  Wellington,  40 
Kansas,  173 ;  Baltimore  v.  Radecke,  49  Maryland,  217 ;  Chicago  v. 
Trotter,  136  Illinois,  430. 

With  the  exception  of  Baltimore  v.  Radecke,  these  cases  passed 
on  the  validity  of  city  ordinances  prohibiting  persons  parading 
streets  with  banners,  musical  instruments,  etc.,  without  first  obtain- 
ing permission  of  the  mayor  or  common  council  or  police  depart- 
ment. Funeral  and  military  processions  were  excepted,  although 
in  some  respects  they  were  subjected  to  regulation.  This  discrim- 
ination was  made  the  basis  of  the  decision  in  State  ex  rel.  Oarra- 
had  v.  Bering,  but  the  other  cases  seem  to  have  proceeded  upon  the 
principle  that  the  right  of  persons  to  assemble  and  parade  was  a 
well-established  and  inherent  right,  which  could  be  regulated  but 
not  prohibited  or  made  dependent  upon  any  officer  or  oflBcers,  and 
that  its  regulation  must  be  by  well-defined  conditions. 

This  view  has  not  been  entertained  by  other  courts  or  has  not 
been  extended  to  other  instances  of  administration.  The  cases 
were  reviewed  by  Mr.  Justice  McFarland  of  the  Supreme  Court 
of  California  in  In  re  Flaherty,  105  California,  558,  in  which  an 


WILSON   V.  EUREKA   CITY.  419 

ordinance  which  prohibited  the  beating  of  drums  on  the  streets  of 
one  of  the  towns  of  that  State  "without  special  permit  in  writing 
so  to  do  first  had  and  obtained  from  the  president  of  the  board 
of  trustees,"  was  passed  on  and  sustained.  Summarizing  the  cases 
the  learned  justice  said: 

"Statutes  and  ordinances  have  been  sustained  prohibiting  awn- 
ings without  the  consent  of  the  mayor  and  aldermen  (Pedrick  v. 
Bailey,  12  Gray,  161) ;  forbidding  orations,  harangues,  etc.,  in  a 
park  without  the  prior  consent  of  the  park  commissioners  (Com- 
monwealth V.  Abrahams,  156  Mass.  57),  or  upon  the  common  or 
other  grounds,  except  by  the  permission  of  the  city  government 
and  committee  {Commonwealth  v.  Davis,  140  Mass.  485) ;  'beating 
any  drum  or  tambourine,  or  making  any  noise  with  any  instrument 
for  any  purpose  whatever,  without  written  permission  of  the  presi- 
dent of  the  village,'  on  any  street  or  sidewalk  {Vance  v.  Hadfield, 
22  N.  Y.  588,  1003;  4  N.  Y.  Supp.  112) ;  giving  the  right  to  manu- 
facturers and  others  to  ring  bells  and  blow  whistles  in  such  man- 
ner and  at  such  hours  as  the  board  of  aldermen  or  selectmen  may 
in  writing  designate  {Sawyer  v.  Davis,  136  Mass.  239;  49  Amer, 
Rep.  27) ;  prohibiting  the  erecting  or  repairing  of  a  wooden  build- 
ing without  the  permission  of  the  board  of  aldermen  {Mine  v.  The 
City  of  New  Haven,  40  Conn.  478) ;  authorizing  harbor  masters 
to  station  vessels  and  to  assign  to  each  its  place  {Vanderbilt  v. 
Adams,  7  Cow.  349 ) ;  forbidding  the  occupancy  of  a  place  on  the 
street  for  a  stand  without  the  permission  of  the  clerk  of  Paneuil 
Hall  Market  {Nightingale,  petitioner,  11  Pick.  168) ;  forbidding  the 
keeping  of  swine  without  a  permit  in  writing  from  the  board  of 
health  {Quincy  v.  Kennard,  151  Mass.  563) ;  forbidding  the  erec- 
tion of  any  kind  of  a  building  without  a  permit  from  the  commis- 
sioners of  the  town  through  their  clerk  {Commissioners,  &c.,  v. 
Covey,  14t  Md.  262) ;  forbidding  any  person  from  remaining  with- 
in the  limits  of  the  market  more  than  twenty  minutes  unless  per- 
mitted so  to  do  by  the  superintendent  or  his  deputy  {Gommmir 
wealth  V.  Brooks,  109  Mass.  355)." 

In  all  of  these  cases  the  discretion  upon  which  the  right  depend- 
ed was  not  that  of  a  single  individual.  It  was  not  in  all  of  the 
cases  cited  by  plaintiff  in  error,  nor  was  their  principle  based  on 
that.  It  was  based  on  the  necessity  of  the  regulation  of  rights  by 
uniform  and  general  laws — a  necessity  which  is  no  better  ob- 
served by  a  discretion  in  a  board  of  aldermen  or  council  of  a  city 
than  in  a  mayor,  and  the  cases,  therefore,  are  authority  against 
the  contention  of  plaintiff  in  error.  Besides,  it  is  opposed  by  Davis 
v.  Massachusetts,  167  U.  S.  43. 


420  THE   EXERCISE   OF   OFFICIAL    AUTHOBITT. 

Davis  was  convicted  of  violating  an  ordinance  of  the  city  of 
Boston  by  making  a  public  address  on  the  "Common,"  without  ob- 
taining a  permit  from  the  mayor.  The  conviction  was  sustained 
by  the  Supreme  Judicial  Court  of  the  Commonwealth,  162  Mass. 
510,  and  then  brought  here  for  review. 

The  ordinance  was  objected  to,  as  that  in  the  case  at  bar  is  ob- 
jected to,  because  it  was  **in  conflict  with  the  Constitution  of  the 
United  States,  and  the  first  section  of  the  Fourteenth  Amendment 
thereof. ' '    The  ordinance  was  sustained. 

It  follows  from  these  views  that  the  judgment  of  the  Supreme 
Court  of  Utah  should  be  and  it  is 

Affirmed. 


THE  ILLINOIS  STATE  BOARD  OF  DENTAL  EXAMINERS 
V.  THE  PEOPLE  EX  REL.  JOHN  M.  COOPER. 

Supreme  Court  of  Illinois.    September,  1887. 
123  Illinois,  227.         '• 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  Court: 
This  is  a  petition  for  mandamus,  in  which  the  relator  prays 
that  the  Illinois  State  Board  of  Dental  Examiners  may  be  com- 
manded to  issue  to  him  a  license  to  practice  dentistry  and  dental 
surgery  in  the  State  of  Illinois. 

The  statute,  under  which  the  petition  is  filed,  and  which  defines 
the  powers  and  prescribes  the  duties  of  the  State  Board  of  Dental 
Examiners,  is  *  *  An  act  to  insure  the  better  education  of  practition- 
ers of  dental  surgery  and  to  regulate  the  practice  of  dentistry  in 
the  State  of  Illinois,"  approved  May  30,  1881,  in  force  July  1, 
1881.  (Hurd's  Rev.  Stat.  1885,  chap.  91,  p.  816.)  The  sixth  sec- 
tion of  this  act  is  as  follows:  "Any  and  all  persons,  who  shall  so 
desire,  may  appear  before  said  board  at  any  of  its  regular  meet- 
ings and  be  examined  with  reference  to  their  knowledge  and  skill 
in  dental  surgery,  and  if  the  examination  of  any  such  person  or 
persons  shall  prove  satisfactory  to  said  board,  the  board  of  exam- 
iners shall  issue  to  such  persons  as  they  shall  find  from  such  exam- 
ination to  possess  the  requisite  qualifications,  a  license  to  practice 
dentistry  in  accordance  with  the  provisions  of  this  act.  But  said 
board  shall,  at  all  times,  issue  a  license  to  any  regular  graduate  of 
any  reputable  dental  college  without  examination,  upon  the  pay- 


DENTAL   EXAMINEES   V.    THE   PEOPLE.  421 

ment  of  such  graduate,  to  the  said  board,  of  a  fee  of  one  dollar. 
All  licenses  issued  by  said  board  shall  be  signed  by  the  members 
thereof,  and  be  attested  by  its  president  and  secretary;  and  such 
license  shall  be  prima  facie  evidence  of  the  right  of  the  holder  to 
practice  dentistry  in  the  State  of  Illinois."  The  first  section  of  the 
act  provides,  "that  it  shall  be  unlawful  for  any  person,  who  is 
not  at  the  time  of  the  passage  of  this  act  engaged  in  the  practice  of 
dentistry  in  this  State,  to  commence  such  practice,  unless  such  per- 
son shall  have  received  a  diploma  from  the  faculty  of  some  repu- 
table dental  college  duly  authorized  by  the  laws  of  this  State,  or  of 
some  other  of  the  United  States,  or  by  the  laws  of  some  foreign 
country,  in  which  college  or  colleges  there  was  at  the  time  of  the 
issue  of  such  diploma,  annually  delivered  a  full  course  of  lectures 
and  instruction  in  dental  surgery,"  etc. 

In  The  People  ex  rel.  Sheppard  v.  State  Board  of  Dental  Ex- 
aminers, 110  111.  180,  we  held  that  the  act  did  not  specifically  define 
what  was  a  reputable  college,  and  that  it  was  left  to  the  discretion 
and  judgment  of  the  board  to  determine  what  was  a  reputable  col- 
lege. In  that  case  the  mandamus  was  refused  on  the  general 
ground  that  the  writ  will  not  lie  to  compel  the  performance  of  acts 
or  duties,  which  necessarily  call  for  the  exercise  of  judgment  and 
discretion  on  the  part  of  the  officer  or  body  at  whose  hands  their 
performance  is  required. 

But  if  a  discretionary  power  is  exercised  with  manifest  injus- 
tice, the  courts  are  not  precluded  from  commanding  its  due  exer- 
cise. They  will  interfere,  where  it  is  clearly  shown  that  the  dis- 
cretion is  abused.  Such  abuse  of  discretion  will  be  controlled  by 
mandamus.  A  public  officer  or  inferior  tribunal  may  be  guilty  of 
so  gross  an  abuse  of  discretion  or  such  an  evasion  of  positive  duty, 
as  to  amount  to  a  virtual  refusal  to  perform  the  duty  enjoined, 
or  to  act  at  all  in  contemplation  of  law ;  in  such  a  case  mandamus 
will  afford  a  remedy.  Tapping  on  Mandamus,  66  and  19;  Wood 
on  Mandamus,  64;  Com'rs  of  the  Poor  v.  Lynah,  2  McCord  (S.  C), 
170;  The  People  v.  Perry,  13  Barb.  206;  Arberry  v.  Beavers,  6 
Texas,  457. 

In  VilUige  of  Glencoe  v.  The  People,  78  111.  382,  we  said:  ''The 
discretion  vested  in  the  council  can  not  be  exercised  arbitrarily  for 
the  gratification  of  feelings  of  malevolence,  or  for  the  attainment 
of  merely  personal  and  selfish  ends.  It  must  be  exercised  for  the 
public  good,  and  should  be  controlled  by  judgment  and  not  by  pas- 
sion or  prejudice.  When  a  discretion  is  abused  and  made  to  work 
injustice,  it  is  admissible  that  it  shall  be  controlled  by  mandamus." 


422  •     THE   EXEBGISE   OF    OFFICIAL   AUTHOBITY. 

In  the  present  case  the  demurrer  admits  all  the  allegations  of 
the  petition  to  be  true.  It  will  be  necessary  to  examine  those  alle- 
gations to  see  if  they  show  any  abuse  of  discretion  on  the  part  of 
the  board,  or  any  unjust  exercise  of  the  discretionary  power  vested 
in  it. 

The  petition  alleges  that  the  relator  complied  with  the  require- 
ment of  the  statute  and  with  the  rule  of  the  board  adopted  in  Sep- 
tember, 1884. 

On  November  4,  1884,  the  relator  matriculated  as  a  student  in 
the  Chicago  College  of  Dental  Surgery,  with  which  four  of  the  five 
members  of  the  appellant  board  are  alleged  to  be  connected  as  in- 
structors or  members  of  the  faculty,  and  pursued  his  studies  there 
during  a  period  of  not  less  than  five  months  in  1884  and  1885. 
During  the  summer  and  fall  of  1885  he  received  practical  instruc- 
tion in  dentistry  and  dental  surgery.  On  November  2,  1885,  he 
matriculated  as  a  student  in  the  Northwestern  College  of  Dental 
Surgery,  which  gives  such  lectures  and  instructions  as  are  required 
by  the  above  rule,  and  attended  therein  as  a  student  during  one 
course  of  instruction  of  not  less  than  five  months  in  the  years  1885 
and  1886.  A  diploma  was  issued  to  him  by  the  last  named  college 
on  April  3,  1886.  On  May  11,  1886,  he  presented  this  diploma  to 
the  State  Board  of  Dental  Examiners,  at  a  regular  meeting  there- 
of, and  tendered  his  fee  of  one  dollar,  and  demanded  a  license. 
The  board  has  refused  to  issue  the  license. 

The  petition  avers  that  the  board  so  refused  to  give  him  a  license 
through  malice,  because  he  left  the  Chicago  college,  in  which  four 
members  of  the  board  are  interested,  and  graduated  at  the  North- 
western college.  It  also  avers  that  the  two  colleges  are  rivals  for 
the  patronage  of  students,  that  the  board  is  under  the  control  of 
the  Chicago  college  and  determined  to  break  down  the  Northwest- 
em  college,  and  that  the  refusal  to  issue  the  license  springs  from  a 
determination  to  protect  their  own  college  from  competition. 

If  these  averments  are  true,  the  members  of  the  State  board  are 
abusing  their  discretion  and  making  an  unjust  use  of  it.  They 
have  a  right  to  decide  whether  the  college,  at  which  an  applicant 
for  license  has  graduated,  is  reputable  or  not.  But  they  must  de- 
cide that  question  upon  just  and  fair  principles.  The  discretion 
with  which  they  are  vested  was  conferred  upon  them  in  the  inter- 
est of  the  public  and  to  protect  the  people  from  unskilled  and  un- 
educated practitioners  of  dentistry.  If  four  of  the  five  members, 
which  compose  the  board,  are  instructors  in  a  particular  college, 


DENTAL   EXAMINERS   V,    THE   PEOPLE.  423 

and  if  they  are  making  use  of  their  power  under  the  State  law  to 
build  up  their  own  institution  and  crush  out  its  rival,  they  are 
acting  from  motives  of  self-interest  and  not  in  the  interests  of  the 
public.  It  can  not  be  tolerated  that  licenses  should  be  withheld  for 
any  such  unworthy  reasons.  Inasmuch  as  the  board  has  elected 
to  stand  by  the  overruled  demurrer  to  the  petition,  we  are  bound  to 
assume  that  the  statements  of  the  petition  are  true. 

Again,  the  relator  says  in  his  petition  that,  after  his  application 
on  May  11,  1886,  he  wrote  on  May  25  to  the  secretary  of  the  board 
and  inquired  why  a  license  was  not  issued  to  him.  On  May  26  the 
secretary  wrote  in  reply,  returning  the  one  dollar,  and  saying: 
* '  The  matter  of  issuing  a  license  on  your  diploma  from  the  North- 
western College  of  Dental  Surgery  was  referred  to  the  National 
Association  of  Dental  Examiners,  which  will  meet  in  August.  Un- 
til their  decision  I  can  not  issue  any  license. ' '  It  appears  that  the 
association  here  referred  to  is  composed,  for  the  most  part,  of  men 
living  outside  of  this  State,  and  that  its  meeting  "in  August"  was 
to  take  place  in  the  State  of  New  York. 

When  a  regular  graduate  of  a  dental  college  applies  to  the  board 
of  examiners  for  a  license,  the  only  question  for  them  to  determine 
is  whether  the  college,  at  which  the  applicant  graduated,  is  repu- 
table or  not.  The  law  clothes  them,  and  no  other  body,  with  the 
power  to  decide  this  question.  They  can  not  delegate  their  dis- 
cretionary power  to  an  organization  beyond  the  limits  of  the  State. 
By  the  letter  of  the  secretary  the  board  declined  to  perform  the 
duty  imposed  upon  it  by  the  Illinois  statute,  and  announced  its  in- 
tention of  referring  the  question  of  issuing  a  license  to  a  foreign 
association. 

After  this  announcement,  upon  being  threatened  with  a  manda- 
mus proceeding,  the  board,  in  an  official  communication  signed  by 
its  secretary,  promised  the  relator's  attorney  that,  if  he  would  wai^ 
a  reasonable  time,  it  would  call  a  meeting  and  would  issue  to  the 
relator  the  license  which  he  demanded.  The  meeting  was  held  on 
June  25,  1886,  but  the  license  was  refused.  When  the  board  prom- 
ised to  issue  a  license,  it  must  have  been  of  the  opinion  that  the 
relator  was  entitled  to  it,  and  they  could  not  have  considered  him 
entitled  to  it  unless  they  regarded  the  college  at  which  he  had  grad- 
uated as  reputable. 

It  is  claimed  by  counsel  for  appellee  that  the  board,  by  adopting 
the  above  rule,  has  exercised  its  discretion  in  determining  what  is 
a  reputable  dental  college;  that  any  college,  which  insists  upon 
such  requisites  for  graduation  as  the  rule  prescribes,  must  be  recog- 


424  THE    EXEKCIBE    OF    OFFICIAL    AUTHOBITY. 

nized  by  the  board  as  a  reputable  college,  and  that,  as  the  North- 
western college  has  brought  itself  within  the  requirements  of  the 
rule,  the  board  has  no  discretion  about  admitting  its  graduates. 
On  the  other  hand,  counsel  for  appellant  insists  that,  while  no  col- 
leges which  fail  to  comply  with  the  rule  will  be  regarded  as  repu- 
table, yet  the  board  would  have  a  right  to  demand  other  requisites 
than  those  specified  in  the  rule  before  deciding  a  college  to  be  repu- 
table. 

We  are  not  prepared  to  hold  that  a  dental  college,  which  requires 
a  preliminary  examination  before  admitting  students  to  matricula- 
tion, and  which  requires  students  before  graduation  to  attend  upon 
two  full  regular  courses  of  lectures  and  practical  instructions,  eacli 
to  be  of  not  less  than  five  months'  duration  and  to  be  held  in  sepa- 
rate years  with  practical  instructions  intervening  between  the 
courses,  may  not  in  other  respects  lack  some  of  the  elements  which 
make  such  an  institution  reputable.  "Reputable,"  according  to 
Webster's  definition,  means  "worthy  of  repute  or  distinction," 
"held  in  esteem,"  "honorable,"  "praiseworthy."  A  college  might 
have  examinations  and  lectures  and  instructions  of  such  an  inferior 
character  and  under  the  direction  of  such  inferior  instructors,  that 
it  would  be  unworthy  of  praise  and  undeserving  of  esteem. 

But  the  petition  in  this  case  alleges  that  the  Northwestern  col- 
lege has  been  recognized  by  the  board  of  examiners  as  a  reputable 
dental  college  and  was  so  recognized  when  the  relator  presented  his 
diploma. 

As  the  board  did  not  refuse  to  grant  the  license  on  the  ground 
that  the  Northwestern  college  was  not  reputable,  but  refused  sucH 
license  on  other  grounds  as  stated  in  the  petition,  it  will  be  pre- 
sumed that  the  members  regarded  that  college  as  reputable.  They 
had  no  discretion  as  to  any  other  matter  than  the  character  of  the 
college  issuing  the  diploma,  as  to  its  being  reputable  or  not  repu- 
table. When  that  matter  was  decided  and  out  of  the  way,  their 
judicial  or  discretionary  power  was  exhausted.  The  duty  to  issue 
the  license  was  then  a  mere  ministerial  one,  and  its  performance 
could  be  enforced  by  mandamus. 

We  think  that  the  allegations  of  the  petition,  considered  as  a 
whole,  warranted  the  issuance  of  the  writ  of  mAindamus. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


TICK   WO   V.    HOPKINS.  425 

TICK  WO  V.  HOPKINS. 

WO  LEE  y.  HOPKINS. 

Supreme  Court  of  the  United  States.    October,  1885. 
118  United  States,  356. 

These  two  cases  were  argued  as  one  and  depended  upon  pre- 
cisely the  same  state  of  facts;  the  first  coming  here  upon  a  writ  of 
error  to  the  Supreme  Court  of  the  State  of  California,  the  second 
on  appeal  from  the  Circuit  Court  of  the  United  States  for  that  dis- 
trict. 

The  plaintiff  in  error,  Yick  Wo,  on  August  24,  1885,  petitioned 
the  Supreme  Court  of  California  for  a  writ  of  habeas  corpus,  alleg- 
ing that  he  was  illegally  deprived  of  his  personal  liberty  by  the 
defendant  as  sheriff  of  the  city  and  county  of  San  Francisco. 

The  sheriff  made  return  to  the  writ  that  he  held  the  petitioner 
in  custody  by  virtue  of  a  sentence  of  the  Police  Judges  Court, 
No.  2,  of  the  city  and  county  of  San  Francisco,  whereby  he  was 
found  guilty  of  a  violation  of  certain  ordinances  of  the  board  of 
supervisors  of  that  county,  and  adjudged  to  pay  a  fine  of  $10,  and, 
in  default  of  payment,  be  imprisoned  in  the  county  jail  at  the  rate 
of  one  day  for  each  dollar  of  fine  until  said  fine  should  be  satisfied, 
and  a  commitment  in  consequence  of  non-payment  of  said  fine. 

The  ordinances  for  the  violation  of  which  he  had  been  found 
guilty  were  set  out  as  follows : 

Order  No.  1569,  passed  May  26,  1880,  prescribing  the  kind  of 
buildings  in  which  laundries  may  be  located. 

''The  people  of  the  city  and  county  of  San  Francisco  do  ordain 
as  follows: 

Sec.  1.  It  shall  be  unlawful,  from  and  after  the  passage  of  this 
order,  for  any  person  or  persons  to  establish,  maintain,  or  carry  on 
a  laundry  within  the  corporate  limits  of  the  city  and  county  of  San 
Francisco  without  having  first  obtained  the  consent  of  the  board 
of  supervisors,  except  the  same  be  located  in  a  building  constructed 
either  of  brick  or  stone. 

"Sec.  2.  It  shall  be  unlawful  for  any  person  to  erect,  build,  or 
maintain,  or  cause  to  be  erected,  built,  or  maintained,  over  or  upon 
the  roof  of  any  building  now  erected  or  which  may  hereafter  be 
erected  within  the  limits  of  said  city  and  county,  any  scaffolding, 
without  first  obtaining  the  written  permission  of  the  board  of  su- 
pervisors, which  permit  shall  state  fully  for  what  purpose  said 


426  THE   BXEECISE   OP   OFFICIAL   AUTHOBITY. 

scaffolding  is  to  be  erected  and  used,  and  such  scaffolding  shall  not 
be  used  for  any  other  purpose  than  that  designated  in  such  permit. 

"Sec.  3.  Any  person  who  shall  violate  any  of  the  provisions  of 
this  order  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  punished  by  a  fine  of  not  more  than  one 
thousand  dollars,  or  by  imprisonment  in  the  comity  jail  not  more 
than  six  months,  or  by  both  such  fine  and  imprisonment.'* 

Order  No.  1587,  passed  July  28, 1880,  the  following  section : 

"Sec.  68.  It  shall  be  unlawful,  from  and  after  the  passage  of 
this  order,  for  any  person  or  persons  to  establish,  maintain,  or 
carry  on  a  laundry  within  the  corporate  limits  of  the  city  and 
county  of  San  Francisco  without  having  first  obtained  the  consent 
of  the  board  of  supervisors,  except  the  same  be  located  in  a  build- 
ing constructed  either  of  brick  or  stone." 

The  following  facts  were  also  admitted  on  the  record :  That  pe- 
titioner is  a  native  of  China  and  came  to  California  in  1861,  and 
is  still  a  subject  of  the  Emperor  of  China;  that  he  has  been  en- 
gaged in  the  laundry  business  in  the  same  premises  and  building 
for  twenty-two  years  last  past;  that  he  had  a  license  from  the 
board  of  fire  wardens,  dated  March  3, 1884,  from  which  it  appeared 
"that  the  above  described  premises  have  been  inspected  by  the 
board  of  fire  wardens,  and  upon  such  inspection  said  board  found 
all  proper  arrangements  for  carrying  on  the  business;  that  the 
stoves,  washing  and  drying  apparatus,  and  the  appliances  for  heat- 
ing smoothing  irons  are  in  good  condition,  and  that  their  use  is  not 
dangerous  to  the  surrounding  property  from  fire,  and  that  all 
proper  precautions  have  been  taken  to  comply  with  the  provisions 
of  order  No.  1617,  defining  'the  fire  limits  of  the  city  and  county 
of  San  Francisco  and  making  regulations  concerning  the  erection 
and  use  of  buildings  in  said  city  and  county,'  and  of  order  No. 
1670,  'prohibiting  the  kindling,  maintenance,  and  use  of  open  fires 
in  houses ; '  that  he  had  a  certificate  from  the  health  officer  that  the 
same  premises  had  been  inspected  by  him,  and  that  he  found  that 
they  were  properly  and  sufficiently  drained,  and  that  all  proper 
arrangements  for  carrying  on  the  business  of  a  laundry,  without 
injury  to  the  sanitary  condition  of  the  neighborhood,  had  been 
complied  with ;  that  the  city  license  of  the  petitioner  was  in  force 
and  expired  October  1st,  1885 ;  and  that  the  petitioner  applied  to 
the  board  of  supervisors,  June  1st,  1885,  for  consent  of  said  board 
to  maintain  and  carry  on  his  laundry,  but  that  said  board,  on  July 
1st,  1885,  refused  said  consent. "  It  is  also  admitted  to  be  true,  as 
alleged  in  the  petition,  that,  on  February  24,  1880,  "there  were 


TICK   WO   V.    HOPKINS.  427 

about  320  laundries  in  the  city  and  county  of  San  Francisco,  of 
which  about  240  were  owned  and  conducted  by  subjects  of  China, 
and  of  the  whole  number,  viz.,  320,  about  310  were  constructed  of 
wood,  the  same  material  that  constitutes  nine-tenths  of  the  houses 
in  the  city  of  San  Francisco.  The  capital  thus  invested  by  the  sub- 
jects of  China  was  not  less  than  two  hundred  thousand  dollars,  and 
they  paid  annually  for  rent,  license,  taxes,  gas,  and  water  about 
one  hundred  and  eighty  thousand  dollars." 

It  was  alleged  in  the  petition,  that  "your  petitioner  and  more 
than  one  hundred  and  fifty  of  his  countrymen  have  been  arrested 
upon  the  charge  of  carrying  on  business  without  having  such  spe- 
cial consent,  while  those  who  are  not  subjects  of  China,  and  who  are 
conducting  eighty  odd  laundries  under  similar  conditions,  are  left 
unmolested  and  free  to  enjoy  the  enhanced  trade  and  profits  aris- 
ing from  this  hurtful  and  unfair  discrimination.  The  business  of 
your  petitioner,  and  of  those  of  his  countrymen  similarly  situated, 
is  greatly  impaired,  and  in  many  cases  practically  ruined  by  this 
system  of  oppression  to  one  kind  of  man  and  favoritism  to  all 
others. ' ' 

The  statement  therein  contained  as  to  the  arrest,  &c.,  was  ad- 
mitted to  be  true,  with  the  qualification  only,  that  the  eighty  odd 
laundries  referred  to  are  in  wooden  buildings  without  scaffolds  on 
the  roofs. 

It  was  also  admitted  "that  petitioner  and  200  of  his  countrymen 
similarly  situated  petitioned  the  board  of  supervisors  for  permission 
to  continue  their  business  in  the  various  houses  which  they  had 
been  occupying  and  using  for  laundries  for  more  than  twenty 
years,  and  such  petitions  were  denied,  and  all  the  petitions  of  those 
who  were  not  Chinese,  with  one  exception  of  Mrs.  Mary  Meagles, 
were  granted." 

By  section  2  of  article  XI  of  the  Constitution  of  California  it  is 
provided  that  '  *  any  county,  city,  town,  or  township  may  make  and 
enforce  within  its  limits  all  such  local,  police,  sanitary,  and  other 
regulations  as  are  not  in  conflict  with  general  laws. ' ' 

By  section  74  of  the  Act  of  April  19,  1856,  usually  known  as  the 
consolidation  act,  the  board  of  supervisors  is  empowered,  among 
other  things,  "to  provide  by  regulation  for  the  prevention  and 
summary  removal  of  nuisances  to  public  health,  the  prevention  of 

contagious    diseases; to    prohibit    the    erection    of 

wooden  buildings  within  any  fixed  limits  where  the  streets  shall 

have  been  established  and  graded; to  regulate  the 

sale,  storage,  and  use  of  gunpowder  or  other  explosive  or  combusti- 


428  THE    EXEBCISE   OF    OFFICIAL    AUTHORITY. 

ble  materials  and  substances,  and  make  all  needful  reflations  for 
protection  against  fire;  to  make  such  regulations  concerning  the 
erection  and  use  of  buildings  as  may  be  necessary  for  the  safety  of 
the  inhabitants." 

The  Supreme  Court  of  California,  in  the  opinion  pronouncing 

the  judgment  in    this  case,  said: "We    have    not 

deemed  it  necessary  to  discuss  the  question  in  the  light  of  supposed 
infringement  of  petitioner's  rights  under  the  Constitution  of  the 
United  States,  for  the  reason  that  we  think  the  principles  upon 
which  contention  on  that  head  can  be  based  have  in  effect  been  set 
at  rest  by  the  cases  of  Barbier  v.  Connolly,  113  U.  S.  27,  and  Soon 
Ring  v.  Crowley,  113  U.  S.  703."  The  writ  was  accordingly  dis- 
charged and  the  prisoner  remanded. 

In  the  other  case,  the  appellant.  Wo  Lee,  petitioned  for  his  dis- 
charge from  an  alleged  illegal  imprisonment,  upon  a  state  of  facts 
shown  upon  the  record,  precisely  similar  to  that  in  the  case  of 
Tick  Wo 

But,  in  deference  to  the  decision  of  the  Supreme  Court  of  Cali- 
fornia in  the  case  of  Yick  Wo,  and  contrary  to  his  own  opinion  as 
thus  expressed,  the  circuit  judge  discharged  the  writ  and  remanded 
the  prisoner.  ) 

Mr.  Justice  JVIatthews  delivered  the  opinion  of  the  court. 

In  the  case  of  the  petitioner,  brought  here  by  writ  of  error  to 
the  Supreme  Court  of  California,  our  jurisdiction  is  limited  to  the 
question,  whether  the  plaintiff  in  error  has  been  denied  a  right  in 
violation  of  the  Constitution,  laws,  or  treaties  of  the  United  States. 
The  question  whether  his  imprisonment  is  illegal,  under  the  Con- 
stitution and  laws  of  the  State,  is  not  open  to  us 

That,  however,  does  not  preclude  this  court  from  putting  upon 
the  ordinances  of  the  supervisors  of  the  county  and  city  of  San 
Francisco  an  independent  construction;  for  the  determination  of 
the  question  whether  the  proceedings  under  these  ordinances  and 
in  enforcement  of  them  are  in  conflict  with  the  Constitution  and 
laws  of  the  United  States,  necessarily  involves  the  meaning  of  the 
ordinances,  which,  for  that  purpose,  we  are  required  to  ascertain 
and  adjudge. 

We  are  consequently  constrained,  at  the  outset,  to  differ  from 
the  Supreme  Court  of  California  upon  the  real  meaning  of  the  or- 
dinances in  question.  That  court  considered  these  ordinances  as 
vesting  in  the  board  of  supervisors  a  not  unusual  discretion  in 
granting  or  withholding  their  assent  to  the  use  of  wooden  buildings 
as  laundries,  to  be  exercised  in  reference  to  the  circumstances  of 


TICK   WO   V.    HOPKINS.  429 

each  case,  with  a  view  to  the  protection  of  the  public  against  the 
dangers  of  fire.  We  are  not  able  to  concur  in  that  interpretation 
of  the  power  conferred  upon  the  supervisors.  There  is  nothing  in 
the  ordinances  which  points  to  such  a  regulation  of  the  business 
of  keeping  and  conducting  laundries.  They  seem  intended  to  con- 
fer, and  actually  do  confer,  not  a  discretion  upon  consideration  of 
the  circumstances  of  each  case,  but  a  naked  and  arbitrary  power 
to  give  or  withhold  consent,  not  only  as  to  places,  but  as  to  per- 
sons. So  that,  if  an  applicant  for  such  consent,  being  in  every  way 
a  competent  and  qualified  person,  and  having  complied  with  every 
reasonable  condition  demanded  by  any  public  interest,  should,  fail- 
ing to  obtain  the  requisite  consent  of  the  supervisors  to  the  prose- 
cution of  this  business,  apply  for  redress  by  the  judicial  process 
of  mandamus,  to  require  the  supervisors  to  consider  and  act  upon 
his  case,  it  would  be  a  sufficient  answer  for  them  to  say  that  the 
law  had  conferred  upon  them  authority  to  withhold  their  assent, 
without  reason  and  without  responsibility.  The  power  given  to 
them  is  not  confided  to  their  discretion  in  the  legal  sense  of  that 
term,  but  is  granted  to  their  mere  will.  It  is  purely  arbitrary,  and 
acknowledges  neither  guidance  nor  restraint. 

This  erroneous  view  of  the  ordinances  in  question  led  the  Su- 
preme Court  of  California  into  the  further  error  of  holding  that 
they  were  justified  by  the  decisions  of  this  court  in  the  cases  of 
Barbier  v.  Connolly,  113  U.  S.  27,  and  Soon  Hing  v.  Crowley,  113 
U.  S.  703.  In  both  of  these  cases  the  ordinance  involved  was  sim- 
ply a  prohibition  to  carry  on  the  washing  and  ironing  of  clothes  in 
public  laundries  and  washhouses,  within  certain  prescribed  limits 
of  the  city  and  county  of  San  Francisco,  from  ten  o'clock  at  night 
until  six  0  'clock  in  the  morning  of  the  following  day 

The  ordinance  drawn  in  question  in  the  present  case  is  of  a  very 
different  character.  It  does  not  prescribe  a  rule  and  conditions 
for  the  regulation  of  the  use  of  property  for  laundry  purposes,  to 
which  all  similarly  situated  may  conform.  It  allows  without  re- 
striction the  use  for  such  purposes  of  buildings  of  brick  or  stone; 
but,  as  to  wooden  buildings,  constituting  nearly  all  those  in  previ- 
ous use,  it  divides  the  owners  or  occupiers  into  two  classes,  not 
having  respect  to  their  personal  character  and  qualifications  for 
the  business,  nor  the  situation  and  nature  and  adaptation  of  the 
buildings  themselves,  but  merely  by  an  arbitrary  line,  on  one  side 
of  which  are  those  who  are  permitted  to  pursue  their  industry  by 
the  mere  will  and  consent  of  the  supervisors,  and  on  the  other  those 
from  whom  that  consent  is  withheld,  at  their  mere  will  and  pleas- 


430  THE   EXERCISE   OF    OFFICIAL   AUTHORITY. 

ure.  And  both  classes  are  alike  only  in  this,  that  they  are  tenants 
at  will,  under  the  supervisors,  of  their  means  of  living.  The 
ordinance,  therefore,  also  differs  from  the  not  unusual  case,  where 
discretion  is  lodged  by  law  in  public  officers  or  bodies  to  grant  or 
withhold  licenses  to  keep  taverns,  or  places  for  the  sale  of  spiritu- 
ous liquors,  and  the  like,  when  one  of  the  conditions  is  that  the 
applicant  shall  be  a  fit  person  for  the  exercise  of  the  privilege,  be- 
cause in  such  cases  the  fact  of  fitness  is  submitted  to  the  judgment 
of  the  officer,  and  calls  for  the  exercise  of  a  discretion  of  a  judicial 
nature. 

The  rights  of  the  petitioners,  as  affected  by  the  proceedings  of 
which  they  complain,  are  not  less,  because  they  are  aliens  and  sub- 
jects of  the  Emperor  of  China.  By  the  third  article  of  the  treaty 
between  this  government  and  that  of  China,  concluded  November 
17,  1880,  22  Stat.  827,  it  is  stipulated:  "If  Chinese  laborers,  or 
Chinese  of  any  other  class,  now  either  permanently  or  temporarily 
residing  in  the  territory  of  the  United  States,  meet  with  ill  treat- 
ment at  the  hands  of  any  other  persons,  the  government  of  the 
United  States  will  exert  all  its  powers  to  devise  measures  for  their 
protection,  and  to  secure  to  them  the  same  rights,  privileges,  im- 
munities and  exemptions  as  may  be  enjoyed  by  the  citizens  or  sub- 
jects of  the  most  f  avored,  nation,  and  to  which  they  are  entitled  by 
treaty." 

The  Fourteenth  Amendment  to  the  Constitution  is  not  confined 
to  the  protection  of  citizens.  It  says:  "Nor  shall  any  State  de- 
prive any  person  of  life,  liberty,  or  property  without  due  process 
of  law;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws."  These  provisions  are  universal  in  their 
application,  to  all  persons  within  the  territorial  jurisdiction,  with- 
out regard  to  any  differences  of  race,  of  color,  or  of  nationality; 
and  the  equal  protection  of  the  laws  is  a  pledge  of  the  protection 
of  equal  laws.  It  is  accordingly  enacted  by  §  1977  of  the  Revised 
Statutes,  that  "all  persons  within  the  jurisdiction  of  the  United 
States  shall  have  the  same  right  in  every  State  and  Territory  to 
make  and  enforce  contracts,  to  sue,  be  parties,  give  evidence,  and 
to  the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  persons  and  property  as  is  enjoyed  by  white  citizens 
and  shall  be  subject  to  like  punishment,  pams,  penalties,  taxes, 
licenses,  and  exactions  of  every  kind,  and  to  no  other."  The  ques- 
tions we  have  to  consider  and  decide  in  these  cases,  therefore,  are 
to  be  treated  as  involving  the  rights  of  every  citizen  of  the  United 
States  equally  with  those  of  the  strangers  and  aliens  who  now  in- 
voke the  jurisdiction  of  the  court. 


TICK    WO    V.    HOPKINS.  431 

It  is  contended  on  the  part  of  the  petitioners,  that  the  ordin- 
ances for  violations  of  which  they  aj"e  severally  sentenced  to  im- 
prisonment, are  void  on  their  face,  as  being  within  the  prohibitions 
of  the  Fourteenth  Amendment;  and,  in  the  alternative,  if  not  so, 
that  they  are  void  by  reason  of  their  administration,  operating 
unequally,  so  as  to  punish  in  the  present  petitioners  what  is  per- 
mitted to  others  as  lawful,  without  any  distinction  of  circum- 
stances— an  unjust  and  illegal  discrimination,  it  is  claimed,  which, 
though  not  made  expressly  by  the  ordinances  is  made  possible  by 
them. 

When  we  consider  the  nature  and  the  theory  of  our  institutions 
of  government,  the  principles  upon  which  they  are  supposed  to 
rest,  and  review  the  history  of  their  development,  we  are  con- 
strained to  conclude  that  they  do  not  mean,  to  leave  room  for  the 
play  and  action  of  purely  personal  and  arbitrary  power.  Sover- 
eignty itself  is,  of  course,  not  subject  to  law,  for  it  is  the  author 
and  source  of  law;  but  in  our  system,  while  sovereign  powers  are 
delegated  to  the  agencies  of  government,  sovereignty  itself  remains 
with  the  people,  by  whom  and  for  whom  all  government  exists  and 
acts.  And  the  law  is  the  definition  and  limitation  of  power.  It  is, 
indeed,  quite  true,  that  there  must  always  be  lodged  somewhere, 
and  in  some  person  or  body,  the  authority  of  final  decision;  and 
in  many  cases  of  mere  administration  the  responsibility  is  purely 
political,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opinion  or  by 
means  of  the  suffrage.  But  the  fundamental  rights  to  life,  liberty, 
and  the  pursuit  of  happiness,  considered  as  individual  possessions, 
are  secured  by  those  maxims  of  constitutional  law  which  are  the 
monuments  showing  the  victorious  progress  of  the  race  in  securing 
to  men  the  blessings  of  civilization  under  the  reign  of  just  and 
equal  laws,  so  that,  in  the  famous  language  of  the  Massachusetts 
Bill  of  Rights,  the  government  of  the  commonwealth  "may  be  a 
government  of  laws  and  not  of  men."  For,  the  very  idea  that  one 
man  may  be  compelled  to  hold  his  life,  or  the  means  of  living,  or 
any  material  right  essential  to  the  enjoyment  of  life,  at  the  mere 
will  of  another,  seems  to  be  intolerable  in  any  country  where  free- 
dom prevails,  as  being  the  essence  of  slavery  itself. 

A  similar  question,  very  pertinent  to  the  one  in 

the  present  cases,  was  decided  by  the  Court  of  Appeals  of  Maryland, 
in  the  case  of  the  City  of  Baltimore  v.  BadecJce,  49  Maryland  217. 
In  that  ease  the  defendant  had  erected  and  used  a  steam  engine,  in 
the  prosecution  of  his  business  as  a  carpenter  and  box-maker  in 


432  THE   EXEKCISE   OF    OFFICIAL   AUTBOBITY. 

the  city  of  Baltimore,  under  a  permit  from  the  mayor  and  city 
council,  which  contained  a  condition  that  the  engine  was  **to  be 
removed  after  six  months'  notice  to  that  effect  from  the  mayor.'* 
After  such  notice  and  refusal  to  conform  to  it,  a  suit  was  instituted 
to  recover  the  penalty  provided  by  the  ordinance,  to  restrain  the 
prosecution  of  which  a  bill  in  equity  was  filed.  The  court,  holding 
the  opinion  that  "there  may  be  a  case  in  which  an  ordinance, 
passed  under  grants  of  power  like  those  we  have  cited,  is  so  clearly 
unreasonable,  so  arbitrary,  oppressive,  or  partial,  as  to  raise  the 
presumption  that  the  legislature  never  intended  to  confer  the  power 
to  pass  it,  and  to  justify  the  courts  in  interfering  and  setting  it 
aside  as  a  plain  abuse  of  authority,"  it  proceeds  to  speak,  with  re- 
gard to  the  ordinance  in  question,  in  relation  to  the  use  of  steam 
engines,  as  follows:  "It  does  not  profess  to  prescribe  regulations 
for  their  construction,  location,  or  use,  nor  require  such  precau- 
tions and  safeguards  to  be  provided  by  those  who  own  and  use 
them  as  are  best  calculated  to  render  them  less  dangerous  to  life 
and  property,  nor  does  it  restrain  their  use  in  box  factories  and 
other  similar  establishments  within  certain  defined  limits,  nor  in 
any  other  way  attempt  to  promote  their  safety  and  security  with- 
out destroying  their  usefulness.  But  it  commits  to  the  unre- 
strained will  of  a  single  public  officer  the  power  to  notify  every 
person  who  now  employs  a  steam  engine  in  the  prosecution  of  any 
business  in  the  city  of  Baltimore,  to  cease  to  do  so,  and,  by  provid- 
ing compulsory  fines  for  every  day's  disobedience  of  such  notice 
and  order  of  removal,  renders  his  power  over  the  use  of  steam  in 
that  city  practically  absolute,  so  that  he  may  prohibit  its  use  alto- 
gether. But  if  he  should  not  choose  to  do  this,  but  only  to  act  in 
particular  cases,  there  is  nothing  in  the  ordinance  to  guide  or  con- 
trol his  action.  It  lays  down  no  rules  by  which  its  impartial  execu- 
tion can  be  secured  or  partiality  and  oppression  prevented.  It  is 
clear  that  giving  and  enforcing  these  notices  may,  and  quite  likely 
will,  bring  ruin  to  the  business  of  those  against  whom  they  are  di- 
rected, while  others,  from  whom  they  are  withheld,  may  be  actually 
benefited  by  what  is  thus  done  to  their  neighbors;  and,  when  we 
remember  that  this  action  or  non-action  may  proceed  from  enmity 
or  prejudice,  from  partisan  zeal  or  animosity,  from  favoritism  and 
other  improper  influences  and  motives  easy  of  concealment  and 
difficult  to  be  detected  and  exposed,  it  becomes  unnecessary  to  sug- 
gest or  to  comment  upon  the  injustice  capable  of  being  brought 
under  cover  Of  such  a  power,  for  that  becomes  apparent  to  every 
one  who  gives  to  the  subject  a  moment's  consideration.    In  fact, 


TICK   WO    V.    HOPKINS.  "      433 

an  ordinance  which  clothes  a  single  individual  with  such  power 
hardly  falls  within  the  domain  of  law,  and  we  are  constrained  to 
pronounce  it  inoperative  and  void." 

This  conclusion,  and  the  reasoning  on  which  it  is  based,  are  de- 
ductions from  the  face  of  the  ordinance,  as  to  its  necessary  tendency 
and  ultimate  actual  operation.  In  the  present  cases  we  are  not 
obliged  to  reason  from  the  probable  to  the  actual,  and  pass  upon 
the  validity  of  the  ordinances  complained  of,  as  tried  merely  by 
the  opportunities  which  their  terms  afford,  of  unequal  and  unjust 
discrimination  in  their  administration.  For  the  cases  present  the 
ordinances  in  actual  operation,  and  the  facts  shown  establish  an 
administration  directed  so  exclusively  against  a  particular  class  of 
persons  as  to  warrant  and  require  the  conclusion,  that,  whatever 
may  have  been  the  intent  of  the  ordinances  as  adopted,  they  are 
applied  by  the  public  authorities  charged  with  their  administra- 
tion, and  thus  representing  the  State  itself,  with  a  mind  so  unequal 
and  oppressive  as  to  amount  to  a  practical  denial  by  the  State  of 
that  equal  protection  of  the  laws  which  is  secured  to  the  petitioners, 
as  to  all  other  persons,  by  the  broad  and  benign  provisions  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 
Though  the  law  itself  be  fair  on  its  face  and  impartial  in  appear- 
ance, yet,  if  it  is  applied  and  administered  by  public  authority 
with  an  evil  eye  and  an  unequal  hand,  so  as  practically  to  make 
unjust  and  illegal  discriminations  between  persons  in  similar  cir- 
cumstances, material  to  their  rights,  the  denial  of  equal  justice  is 
still  within  the  prohibition  of  the  Constitution.  This  principle  of 
interpretation  has  been  sanctioned  by  this  court  in  Henderson  v. 
Mayor  of  New  York,  92  U.  S.  259 ;  Chy  Lung  v.  Freeman,  92  U.  S. 
275 ;  Ex  parte  Virginia,  100  U.  S.  339 ;  Neal  v.  Delaware,  103  U.  S. 
370 ;  and  Soon  Hing  v.  Crowley,  113  U.  S.  703. 

The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record, 
are  within  this  class.  It  appears  that  both  petitioners  have  com- 
plied with  every  requisite,  deemed  by  the  law  or  by  the  public 
officers  charged  with  its  administration,  necessary  for  the  protec- 
tion of  neighboring  property  from  fire,  or  as  a  precaution  against 
injury  to  the  public  health.  No  reason  whatever,  except  the  will 
of  the  supervisors,  is  assigned  why  they  should  not  be  permitted 
to  carry  on,  in  the  accustomed  manner,  their  harmless  and  useful 
occupation,  on  which  they  depend  for  a  livelihood.  And  while  this 
consent  of  the  supervisors  is  withheld  from  them  and  from  two 
hundred  others  who  have  also  petitioned,  all  of  whom  happen  to 
be  Chinese  subjects,  eighty  others,  not  Chinese  subjects,  are  per- 
28 


434  THE   EXERCISE   OF   OFFICIAL   AUTHORITY. 

mitted  to  carry  on  the  same  business  under  similar  conditions.  The 
fact  of  this  discrimination  is  admitted.  No  reason  for  it  is  shown, 
and  the  conclusion  cannot  be  resisted,  that  no  reason  for  it  exists 
except  hostility  to  the  race  and  nationality  to  which  the  petitioners 
belong,  and  which  in  the  eye  of  the  law  is  not  justified.  The  dis- 
crimination is,  therefore,  illegal,  and  the  public  administration 
which  enforces  it  is  a  denial  of  the  equal  protection  of  the  laws 
and  a  violation  of  the  Fourteenth  Amendment  of  the  Constitution. 
The  imprisonment  of  the  petitioners  is,  therefore,  illegal,  and  they 
must  be  discharged.    To  this  end, 

The  judgment  of  the  Supreme  Court  of  California  in  the  case  of 
Yick  Wo,  and  that  of  the  Circuit  Court  of  the  United  States  for 
the  District  of  California  in  the  case  of  Wo  Lee,  are  severally  re- 
versed, and  the  cases  remanded,  each  to  the  proper  court,  with 
directions  to  discharge  the  petitioners  from  custody  and  imprison- 
ment. 


4.    Construction  of  Powers.  ) 

PEOPLE  V.  N.  Y.,  L.  E.  &  W.  R.  R.  CO. 

New  York  Court  of  Appeals.    January,  1887. 
104  New  York  58, 

Danporth,  J.  Upon  motion  on  notice  by  the  attorney-general 
for  a  mandamus  requiring  the  defendant  to  construct  and  main- 
tain on  the  line  of  its  road  at  the  village  of  Hamburgh,  a  building 
of  sufficient  capacity  to  accommodate  its  passengers  arriving  at 
that  place,  or  departing  therefrom,  or  in  waiting  to  depart,  and 
such  freight  as  is  usually  received  at  or  shipped  from  that  point,  it 
appeared  that  the  village  of  New  Hamburgh  contains  twelve  hun- 
dred inhabitants  and  furnishes  to  the  defendant  at  a  station  estab- 
lished by  it,  a  large  freight  and  passenger  business;  that  its  depot 
building  is  entirely  inadequate  for  these  purposes,  and  the  absence 
of  a  depot  building  and  warehouse  sufficient  for  the  accommodation 
of  passengers  and  freight  has  been  and  continues  to  be  a  matter  of 
serious  damage  to  large  numbers  of  persons  doing  business  at  that 
station.  These  facts  were  conceded  by  the  defendant.  It  also  ap- 
peared that  upon  complaint  made  to  the  railroad  commissioners 
after  notice  to  the    defendant,    that   body  adjudged  and  recom- 


PEOPLE  V.  N.  Y.,  L.  E.  &  W.  R.  R.  CO.  435 

mended  that  the  railroad  company  should  construct  a  suitable 
building  at  that  station  within  a  time  named,  but  although  in- 
formed of  this  determination,  the  defendant  failed  to  comply  or 
do  anything  towards  complying  with  it,  not  for  want  of  means  or 
ability  to  do  so,  but  because  "its  directors  decided  that  the  inter- 
ests of  the  defendant  required  it  to  postpone,  for  the  present,  the 
erection  or  enlargement  of  the  station  house  or  depot  at  the  village 
of  Hamburgh. ' ' 

The  Supreme  Court  at  Special  Term  granted  the  motion,  and, 
adopting  the  language  of  the  railroad  commissioners,  ordered  that 
the  defendant  "forthwith  construct  and  maintain  a  suitable  depot 
building,  of  sufficient  size  and  capacity  to  accommodate  passengers 
arriving  and  departing  on  said  road  at  the  village  of  Hamburgh, 
as  well  as  such  passengers  as  may  be  in  waiting  on  ordinary  occa- 
sions to  depart  from  the  said  village,  on  the  line  and  by  the  way  of 
said  defendant's  road,  and  of  sufficient  capacity  to  accommodate 
such  quantities  of  freight  as  are  usually  received  at  said  village,  or 
that  may  be  shipped  therefrom,  by  the  way  of  said  New  York,  Lake 
Erie  and  Western  Railroad."  Upon  appeal  to  the  General  Term 
the  order,  after  very  careful  consideration,  was  affirmed.  The 
railroad  company  appeals. 

We  agree  with  the  court  below  that  at  common  law  the  de- 
fendant, as  a  carrier,  is  under  no  obligation  to  provide  warehouses 
for  freight  offered,  or  depots  for  passengers  waiting  transporta- 
tion. But  that  court  has  found  such  duty  to  be  imposed  by  statute. 
To  this  we  are  unable  to  assent.  The  question  arises  upon  the  con- 
struction of  the  General  Railroad  Act  (Laws  of  1850,  chap.  140), 
and  its  amendments 

The  court  below  does  not  find,  nor  does  the  respondent  claim, 
that  the  legislature  has  at  any  time,  in  express  and  specific  terms, 
imposed  upon  a  railroad  company  the  duty  of  erecting  or  main- 
taining a  depot  or  warehouse.  It  is  sought  to  be  implied.  The 
company  is  empowered  to  erect  and  maintain  all  necessary  and 
convenient  buildings,  stations,  etc.,  for  the  accommodation  and  use 
of  their  passengers,  freight  and  business"  (id.  §  28,  subd.  8),  and 
may  acquire  and  hold  real  estate  and  other  property  for  these  pur- 
poses, "as  may  be  necessary  to  accomplish  the  object  of  its  incor- 
poration. ' '  There  are  some  othor  provisions  in  the  same  direction ; 
none  go  further  than  those  cited.  But  from  these,  and  from  the 
circumstances  first  referred  to,  that  the  company  is  exercising  a 
public  trust,  and  to  that  cause  owes  its  existence  and  capacity  to 
enjoy  and^,profit  by  the  franchise  it  has  accepted,  it  is  argued  by 


426  THE   EXEBOISE   OF   OFFICIAL   AUTHOBITT. 

the  respondent  that  the  right  to  construct  a  station,  and  its  neces- 
sity, carries  with  it  an  obligation  to  do  so  in  a  proper  manner.  In 
regard  to  the  facts  there  is  no  dispute.  A  plainer  case  could 
hardly  be  presented  of  a  deliberate  and  intentional  disregard  of  the 
public  interest  and  the  accommodation  of  the  public. 

The  railroad  commissioners  have  thought  that  it  was  essential 
for  those  purposes  that  a  new  and  enlarged  building  for  passengers 
and  freight  should  be  erected.  That  it  is  true,  was  a  question  for 
them  to  decide.  The  statute  (Laws  of  1882,  chap.  353),  created  a 
commission  of  "competent  persons,"  required  from  them  an  official 
constitutional  oath,  assigned  to  them  an  office  for  the  transaction 
of  business,  provided  a  clerk  to  administer  oaths  to  witnesses  and 
a  marshall  to  summon  them,  gave  full  power  of  investigation  and 
supervision  of  all  railroads  and  their  condition  with  reference  not 
only  to  the  security,  but  accommodation  of  the  public,  and  declared 
that  whenever,  in  their  judgment,  it  shall  appear,  among  other 
things,  that  any  addition  to,  or  change  of  the  stations  or  station- 
houses  is  necessary  to  promote  the  security,  convenience  or  accom- 
modation of  the  public,  they  shall  give  notice  to  the  corporation  of 
the  improvements  and  changes  which  they  deem  to  be  proper,  and 
if  they  are  not  made,  they  shall  present  the  facts  to  the  attorney- 
general  for  his  consideration  and  action,  and  also  to  the  legislature. 
All  these  things  have  been  done.  The  commissioners  have  heard 
and  decided.  They  can  do  no  more.  After  so  much  preliminary 
action  by  a  body  wisely  organized  to  exercise  useful  and  beneficial 
functions,  it  might  well  be  thought  unfortunate  that  some  addi- 
tional machinery  had  not  been  provided  to  carry  into  effect  their 
decision.  By  creating,  the  statute  recognizes  the  necessity  for,  such 
a  tribunal  to  adjust  conflicting  interests  and  controversies  between 
the  people  and  the  corporation.  It  has  clothed  it  with  judicial  pow- 
ers to  hear  and  determine,  upon  notice,  questions  arising  between 
these  parties,  but  there  it  stops.  Its  proceedings  and  determina- 
tions, however  characterized,  amount  to  nothing  more  than  an  in- 
quest for  information.  We  find  no  law  by  which  a  court  can  carry 
into  effect  the  decision.  At  this  point  the  law  fails,  not  only  by  its 
incompleteness  and  omission  to  furnish  a  remedy,  but  by  its  ex- 
press provision  that  no  request  or  advice  of  the  board,  "nor  any 
investigation  or  report  made  by"  it,  shall  have  the  effect  to  impair 
the  legal  rights  of  any  railroad  corporation.  The  attorney-general 
is  given  no  new  power.  He  may  consider  the  result  of  the  investi- 
gation made  by  the  commissioners,  and  their  decision,  and  so  may 
the  company,  but  we  must  look  further  for  his  right  of  action,  and 


PEOPLE  V.  N.  Y.,  L.  E.  &  W.  R.  E.  CO.  437 

the  corporation,  disregarding  the  judgment  of  the  commissioners, 
may  continue  the  management  of  its  business  in  its  own  way,  may 
determine,  in  its  own  discretion,  to  what  extent  and  in  what  man- 
ner, the  exercise  of  a  public  trust  requires  it  to  subserve  the  ''se- 
curity, convenience  and  accommodation  of  the  public." 

It  may  say,  as  in  this  case,  the  accommodations  we  furnish  are 
not  sufficient,  they  are  not  suitable,  the  omission  to  furnish  differ- 
ent and  better  entails  injury  upon  the  public,  but  we  will  give  no 
better,  nor  make  alterations  until  we  choose.  The  railroad  commis- 
sioners are  powerless,  and  as  the  law  now  stands,  neither  the 
attorney-general  of  the  State  nor  its  courts  can  make  their  order 
effectual. 

Cases  are  cited  by  the  respondent  in  support  of  a  different  con- 
tention. Some  of  them  turn  upon  statutory  provisions,  as  do  those 
arising  in  Connecticut,  where  the  law  makes  an  order  of  the  com- 
missioners effectual  by  authorizing  its  enforcement  {State  v.  N.  H. 
&  N.  R.  B.  Co.,  37  Conn.  153).  Under  our  statutes  the  public  gain 
nothing  in  any  legal  sense  from  the  determination  of  the  commis- 
sioners. It  is  not  enforceable  as  a  judgment;  it  is  not  even  a 
command;  if  it  affects  the  railroad  company  at  all,  it  is  as  advice 
merely.  It  can  compel  them  only  through  the  interposition  of  the 
legislature,  who  may  indeed  make  it  effectual  by  action  upon  their 
report,  or  by  some  general  law,  if  it  be  deemed  expedient,  giving 
force  and  efficacy  to  their  determinations. 

In  the  next  place,  as  the  duty  sought  to  be  imposed  upon  the  de- 
fendant is  not  a  specific  duty  prescribed  by  statute  either  in  terms 
or  by  reasonable  construction,  the  court  cannot,  no  matter  how 
apparent  the  necessity,  enforce  its  performance  by  mandamus.  .It 
cannot  compel  the  erection  of  a  station-house,  nor  the  enlargement 
of  one.  The  power  of  the  company  to  provide  such  buildings  is, 
under  the  statutes,  a  permissive  one  only.  If  the  corporation 
choose  to  exercise  it,  it  may.  The  statute  does  not  exact  it.  It 
specifies  certain  things  which  the  company  shall  not  do.  It  spe- 
cifies many  things  which  it  shall  do The  statute  is 

peremptory  as  to  many  matters,  but  it  nowhere  says  that  for  its 
intending  passengers,  or  waiting  freights,  cover  by  building  of  any 
kind  shall  be  provided.  As  to  that  the  statute  imports  an  authority 
only,  not  a  command,  to  be  availed  of  at  the  option  of  the  company 
in  the  discretion  of  its  directors,  who  are  empowered  by  statute  to 
manage  "its  affairs,"  among  which  must  be  classed  the  expendi- 
ture of  money  for  station  buildings  or  other  structures  for  the 
promotion  of  the  convenience  of  the  public,  having  regard  also  to 


436  THE    EXEBCISB   OF   OFFICIAL   AUTHOBITY. 

its  own  interest.  With  the  exercise  of  that  discretion  the  legisla- 
ture only  can  interfere 

The  grievance  complained  of  is  an  obvious  one, 

but  the  burden  of  removing  it  can  be  imposed  upon  the  defendant 
only  by  legislation.  The  legislature  created  the  corporation  upon 
the  theory  that  its  functions  should  be  exercised  for  the  public 
benefit.  It  may  add  other  regulations  to  those  now  binding  it,  but 
the  court  can  interfere  only  to  enforce  a  duty  declared  by  law. 
The  one  presented  in  this  case  is  not  of  that  character.  Nor  can  it 
by  any  fair  or  reasonable  construction  be  implied.  The  whole 
subject  of  the  relation  between  the  company  and  its  passengers 
and  freightors  appears  to  have  been  in  contemplation  of  the  legis- 
lature. Certain  acts  towards  them  as  we  have  seen  are  made  im- 
perative as  duties  (§  36) ;  others,  and  among  them  the  erection  of 
stations  and  buildings,  are  made  possible  by  permission  (§  28, 
subd.  8).  We  cannot  disregard  this  difference  in  language,  and 
give  by  implication  to  one  phrase  the  same  force  and  meaning 
which  the  legislature  has  by  express  terms  conveyed  in  the  other. 
We  are  constrained,  therefore,  to  hold  that  the  appeal  must  suc- 
ceed. 

The  order  appealed  from  should  be  reversed  and  the  motion  de- 
nied, with  costs. 

All  concur,  Rapallo,  J.,  in  result. 

Ordered  accordingly. 


5.    Conclusiveness  of  Administrative  Determinations. 

HILTON  V.  MERRITT. 

Supreme  Court  of  the  United  States.    January,  1884. 
no  United  States  97. 

This  was  a  suit  brought  by  the  plaintiffs  in  error,  who  were  plain- 
tiffs in  the  Circuit  Court,  to  recover  the  sum  of  $1,037.40,  an  al- 
leged excess  of  duties  exacted  by  the  defendant  as  collector  of 
customs  at  the  port  of  New  York,  on  two  cases  of  kid  gloves  im- 
ported by  plaintiffs  from  Paris,  France,  in  the  steamer  Mosel,  in 
June,  1878. 

Mr.  Justice  Woods  delivered  the  opinion  of  the  court. 

It  appears  from  the  bill  of  exceptions  found  in  the  record  that 
the  withdrawal  entry  of  the  packages  on  which  the  duty  occasion- 


HILTON    V.    MEBBITT.  439 

ing  tliis  controversy  arose,  was  made  October  23d,  1878.  The  local 
appraiser  made  and  reported  to  the  collector  his  appraisement  of 
the  goods.  The  importers  being  dissatisfied  therewith,  demanded 
a  reappraisment  according  to  law,  which  was  allowed,  and  a  mer- 
chant appraiser  appointed  to  be  associated  with  one  of  the  general 
appraisers. 

The  merchant  appraiser  made  an  appraisement  of  the  standard 
gloves  at  42  francs  per  dozen,  and  of  the  invoice  at  16,613.10 
francs,  which  corresponded  with  the  importer's  invoice  and  en- 
tered valuation  of  the  merchandise  in  question. 

The  genera]  appraiser  made  a  report  of  his  appraisement  on  the 
same  day,  in  which  he  put  the  value  of  the  standard  gloves  at  52 
francs,  and  the  total  valuation  at  20,282.85  francs. 

Upon  receiving  these  and  other  appraisements,  the  collector 
wrote  to  the  general  appraiser  a  letter 

To  this  letter  the  general  appraiser  replied,  by  letter  of  the  same 
date,  stating,  among  other  things,  as  follows : 

"As  to  the  invoices  under  consideration  I  do  not  feel  at  liberty 
to  formally  withdraw  the  reports  I  have  already  presented,  because 
they  were  found  on  the  evidence  received  on  the  reappraisements, 
and  I  think  it  best  that  they  should  stand  as  expressing  my  con- 
victions based  on  that  evidence.  If,  however,  you  are  willing  to 
retain  them  as  memoranda  for  that  purpose,  and  will  accept  as 
substitutes  therefor  the  additional  reports  which  I  present  herewith 
and  have  designated  as  'amended'  reports,  I  shall  feel  that  I  have 
met,  to  the  best  of  my  ability,  the  considerations  which  your  letter 
set  forth." 

The  amended  report  of  the  general  appraiser  fixed  the  value  of 
the  merchandise  in  question  in  this  case  at  49  francs 

The  collector,  on  October  23d,  1878,  assessed  the  duty,  50  per 
cent,  ad  valorem,  on  the  merchandise,  based  on  the  valuation  of 
the  standard  glove  at  49  francs,  adopting  the  appraisement  re- 
turned in  the  amended  report  of  the  general  appraiser,  that  being 
an  advance  of  the  invoice  value  of  16.2  per  cent.,  and  imposed  an 
additional  duty  of  20  per  cent,  ad  valorem  on  account  of  under- 
valuation in  the  entry. 

The  importers,  the  plaintiffs  in  error,  duly  protested  against  the 
action  of  the  collector  and,  under  protest,  paid  the  duties  assessed 
and  appealed  to  the  Secretary  of  the  Treasury,  who,  on  November 
11th,  1878,  approved  the  decision  of  the  collector,  holding,  how^ 
ever,  that  the  correctness  of  the  valuation  was  not  a  matter  subject 
to  appeal. 


440  THE   EXEBCISE   OP   OFFICIAL   AUTHOBITT. 

Upon  the  trial  of  the  case  the  plaintiffs  offered  in  evidence  the 
records  of  the  proceedings  before  the  merchant  appraiser  and  the 
general  appraiser,  including  the  testimony  and  various  documents 
before  those  officers,  and  subsequently  before  the  collector.  They 
also  offered  the  testimony  of  one  Hildreth,  an  expert,  and  others,  to 
show  the  foreign  market  value  of  gloves  at  the  principal  markets  of 
France,  whence  the  merchandise  in  question  was  imported.  They 
also  offered  the  testimony  of  the  collector  to  show  all  the  facts 
within  his  knowledge,  or  officially  acted  upon  by  him,  in  relation 
to  the  invoice  in  question,  and  to  show  what  his  experience  was  in 
valuing  kid  gloves.  They  also  offered  to  prove  the  cost  of  the 
manufacture  of  goods  similar  to  those  in  question.  All  the  evi- 
dence so  offered  was  excluded  by  the  court,  and  the  plaintiffs  ex- 
cepted. 

The  question  presented  by  the  exceptions  of  plaintiffs  is  whether 
the  valuation  of  merchandise  made  by  the  customs  officers  under 
the  statutes  of  the  United  States  for  the  purpose  of  levying  duties 
thereon  is,  in  the  absence  of  fraud  on  the  part  of  the  officers,  con- 
clusive on  the  importer,  or  is  such  valuation  reviewable  in  an  ac- 
tion at  law  brought  by  the  importer  to  recover  back  duties  paid 
under  protest. 

The  solution  of  this  question  depends  upon  the  provisions  of  the 
acts  of  Congress  regulating  the  subject 

The  provisions  of  the  statute  law  show  with  what  care  Congress 
has  provided  for  the  fair  appraisal  of  imported  merchandise  sub- 
ject to  duty,  and  they  show  also  the  intention  of  Congress  to  make 
the  appraisal  final  and  conclusive.  When  the  value  of  the  mer- 
chandise is  ascertained  by  the  officers  appointed  by  law,  and  the 
statutory  provisions  for  appeal  have  been  exhausted,  the  statute 
declares  that  the  "appraisement  thus  determined  shall  be  final 
and  deemd  to  be  the  true  value,  and  the  duties  shall  be  levied 
thereon  accordingly.  * '  This  language  would  seem  to  leave  no  room 
for  doubt  or  construction. 

The  contention  of  the  appellants  is,  that  after  the  appraisal  of 
merchandise  has  been  made  by  the  assistant  appraiser,  and  has  been 
reviewed  by  the  general  appraiser,  and  a  protest  has  been  entered 
against  his  action  by  the  importer,  and  the  collector  has  appointed 
a  special  tribunal,  consisting  of  a  general  and  merchant  appraiser, 
to  fix  the  value,  and  they  have  reported  each  a  different  valuation 
to  the  collector,  who  has  decided  between  them  and  fixed  the  valua- 
tion upon  which  the  duties  were  to  be  laid,  that  in  every  such  case 
the  importer  is  entitled  to  contest  still  further  the  appraisement 


HILTON    V.    MERBITT.  441 

and  have  it  reviewed  by  a  jury  in  an  action  at  law  to  recover  back 
the  duties  paid.  After  Congress  has  declared  that  the  appraise- 
ment of  the  customs  officers  should  be  final  for  the  purpose  of  levy- 
ing duties,  the  right  of  the  importer  to  take  the  verdict  of  a  jury 
upon  the  correctness  of  the  appraisement  should  be  declared  in 
clear  and  explicit  terms.    So  far  from  this  being  the  case,  we  do 

not  find  that  Congress  has  given  the  right  at  all 

The  appellants  contend,  however,  that  the  right  to  review  the 
appraisement  of  the  customs  officers  by  a  jury  trial  is  given  to  the 
importer  by   sections   2931   and   3011    of  the   Revised   Statutes. 


The  argument  is  that  by  these  sections  the  appraisement  whicH 
had  been  declared  final  by  section  2930  is  opened  for  review  by  a 
jury  trial.  Such  is  not,  in  our  opinion,  a  fair  construction  of  this 
legislation 

Congress  has  said  that  the  valuation  of  the  customs  officers  shall 
be  final,  but  there  is  still  a  field  left  for  the  operation  of  the  sections 
on  which  the  plaintiffs  in  error  rely.  Questions  relating  to  the 
classification  of  imports,  and  consequently  to  the  rate  and  amount 
of  duty,  are  open  to  review  in  an  action  at  law.  This  construction 
gives  effect  to  both  provisions  of  the  law.  If  we  yield  to  the  con- 
tention and  construction  of  plaintiffs  in  error,  we  must  strike  from 
the  statute  the  clause  which  renders  the  valuation  of  dutiable  mer- 
chandise final. 

We  are  of  opinion,  therefore,  that  the  valuation  made  by  the 
customs  officers  was  not  open  to  question  in  an  action  at  law  as 
long  as  the  officers  acted  without  fraud  and  within  the  power  con- 
ferred on  them  by  the  statute.  The  evidence  offered  by  the  plain- 
tiffs, and  ruled  out  by  the  court,  tended  only  to  show  carelessness 
or  irregularity  in  the  discharge  of  their  duties  by  the  customs  of- 
ficers, but  not  that  they  were  assuming  powers  not  conferred  by 
the  statute,  and  the  questions  which  the  plaintiffs  proposed  to  sub- 
mit to  the  jury  were,  in  the  view  we  take  of  the  statute,  immaterial 
and  irrelevant. 

We  find  no  error  in  the  record.  The  judgmentof  the  Circuit 
Court  must,  therefore,  be 

Affirmed, 


442  THE   EXEBCISB   OF    OFFICIAL    AUTHOBITY. 


BELL  V.  PIERCE. 

Court  of  Appeals  of  New  York.    May,  1872. 
51  N.  Y.  12. 


About  the  20th  of  June,  1864,  plaintiff's  family  went  to  the 
house  in  West  Seneca,  and  remained  there,  as  in  previous  years, 
for  about  three  months,  and  then  returned  to  the  house  in  Buffalo ; 
and  during  the  summer  season,  plaintiff  was  with  his  family  in 
"West  Seneca,  or  at  his  house  in  Buffalo,  substantially  as  is  above 
stated  to  have  been  his  habit  in  previous  years.  Defendants  had 
no  knowledge,  before  the  delivery  of  the  assessment  roll  to  the 
supervisors  of  the  town,  that  the  plaintiff  had  or  claimed  to  have 
any  residence  except  in  West  Seneca,  although  they  knew  that  he 
had  been  residing  during  that  year  in  Buffalo,  and  that  his  family 
had  come  to  West  Seneca  only  a  few  weeks  previous  to  July  1, 
1864.  They  gave  the  statutory  notices  of  the  completion  of  the  as- 
sessment roll,  and  of  their  meeting  to  correct  the  same,  and  no  one 
appeared  before  them  to  object  to  the  regularity  of  the  plaintiff's 
assessment.  Plaintiff  was  not  assessed  for  personal  property  in  the 
city  of  Buffalo  in  the  year  1864.  Upon  trial  at  circuit,  the  court 
directed  a  verdict  for  the  plaintiff,  subject  to  the  opinion  of  the 
court  at  General  Term.    A  verdict  was  rendered  accordingly. 

The  conclusions  of  law  at  General  Term  were  as  follows : 

That  the  defendants,  as  assessors  as  aforesaid,  had  jurisdiction  to 
determine  whether  the  plaintiff  was  taxable  in  said  town  of  West 
Seneca,  for  personal  property  at  the  time 

Hunt,  C.  If  the  general  term  was  right  in  holding  that  the  de- 
fendants, as  assessors,  had  jurisdiction  to  determine  whether  the 
plaintiff  was  an  inhabitant  of  West  Seneca,  taxable  for  personal 
property  in  that  town,  its  judgment  was  correct.  If  in  error  on 
that  point,  Its  judgment  was  wrong.  In  Barhyte  v.  Shepard,  this 
court  held  that  the  assessors  had  jurisdiction  to  determine  whether 
the  plaintiff's  property  was  entitled  to  exemption  for  the  reason 
that  he  was  a  clergyman.  35  N.  Y.  238.  In  Chegary  v.  Jenkhis, 
this  court  held  that  the  assessors  had  jurisdiction  to  determine 
whether  the  property  sought  to  be  exempt  as  a  seminary  of  learn- 
ing was  entitled  to  that  exemption.    5  N.  Y.  376 

In  each  of  these  cases  the  assessors  had  jurisdiction  of  the  person 


BELL    V.     PIERCE.  443 

alleged  to  be  taxable,  and  of  the  property  on  which  the  assessment 
was  sought  to  be  imposed.  Barhyte,  for  example,  was  a  resident 
of  the  town  of  Spencer.  In  that  town  were  located  both  the  real 
and  personal  estate,  respecting  which  the  question  arose.  He  was 
undoubtedly  a  taxable  inhabitant,  that  is,  one  of  a  class  liable  to 
taxation  under  proper  circumstances.  So  was  Madame  Chegary  a 
taxable  inhabitant  of  New  York.  The  persons  being  taxable  in- 
habitants, and  the  property  in  each  case  being  before  the  assessors, 
it  was  their  duty  to  decide  whether  it  came  within  the  exemption 
provided  by  law.  The  parties  making  complaint  themselves  sub- 
mitted that  very  question  to  the  assessors.  It  was  their  duty  to  de- 
cide it  as  they  understood  the  law  to  be.  In  Mygatt  v.  Washburn, 
15  N.  Y.  316,  on  the  other  hand,  the  assessors  had  no  jurisdiction  of 
the  person  of  the  plaintiff.  He  was  not  a  taxable  inhabitant,  that 
is,  he  was  not  liable  to  taxation  for  personal  property  in  the  town 
of  Oxford,  under  any  circumstances.  The  assessors,  therefore,  had 
no  power  to  adjudicate  upon  the  question  of  his  taxability,  and 
when  they  undertook  to  do  so  their  action  was  void,  and  did  not 
protect  them  from  liability. 

Under  the  Revised  Statutes  the  rule  is  as  follows,  viz.:  ** Every 
person  shall  be  assessed  in  the  town  or  ward  where  he  resides,  when 
the  assessment  is  made,  for  all  the  personal  estate  owned  by  him." 
1  R.  S,  390,  sec.  5.  But  one  assessment  can  be  made  upon  an  in- 
dividual for  personal  estate,  and  that  must  be  in  the  town  or  ward 
where  he  resides  when  the  assessment  is  made.  In  the  year  1850 
(Laws  1850,  chap.  92,  p.  142),  it  was  enacted,  *'that  in  case  any 
person  possessed  of  such  personal  estate  shall  reside  during  any 
year  in  which  taxes  may  be  levied,  in  two  or  more  counties,  towns 
or  wards,  his  residence,  for  the  purposes  and  within  the  meaning 
of  this  section  (sec.  5,  supra),  shall  be  deemed  and  held  to  be  in 
the  town,  county  or  ward  in  which  his  principal  business  shall  have 
been  transacted."    1  R.  S.,  Edm.  ed.  362. 

A  new  test  to  determine  the  fact  of  residence,  which  was  before 
unknown,  was  created  by  this  law.  By  the  fact  as  ascertained  in 
this  mode,  to  wit,  the  place  of  business,  was  the  liability  to  taxa- 
tion determined.  The  statute  assumes  that  a  man  may  have  more 
than  one  place  of  residence  at  the  same  time.  The  liability  to  taxa- 
tion for  personal  property  is  fixed  by  the  residence  on  the  first  day 
of  July  in  each  year.  Mygatt  v.  Washburn,  supra.  No  person  can 
be  assessed  as  a  taxable  inhabitant  of  Seneca  unless  on  that  day  he 
was  a  resident  of  that  town.  On  that  day  the  plaintiff  had,  with 
his  family,  occupied  his  own  house  in  that  town  for  ten  days.    His 


444  THE   EXEBCISB   OP   OFFICIAL   AUTHOEITY. 

family  remained  there  for  three  months  continuously,  the  plaintiff 
taking  a  portion  of  his  meals  there  every  day  and  spending  there 
five  or  six  nights  of  each  week.  He  attended  daily  to  his  business 
in  Buffalo,  taking  a  portion  of  his  meals  at  his  house  there,  sleep- 
ing there  one  or  two  nights  of  each  week,  his  wife  occasionally  tak- 
ing meals  at  the  house  with  him.  The  plaintiff,  upon  this  state  of 
facts,  was  no  doubt  a  voter  in  Buffalo,  and  was  there  liable  to 
military  and  jury  duty.  He  was  a  resident  of  Buffalo,  having  his 
domicile  in  that  city.  The  cases  show  also  that  he  was  at  the  same 
time  a  resident  of  West  Seneca.  To  establish  a  residence  requires  a 
less  permanent  abode  than  to  give  a  domicile,  or  even  to  create  an 
inhabitance.  Harvard  v.  Gore,  5  Pick.  379;  Guire  v.  0' Daniel,  1 
Binny  349 :  Haggart  v.  Morgan,  1  Seld.  422. 

The  books  are  full  of  cases  defining  residence  and  non-residence 
under  the  statutes,  subjecting  non-residents  to  arrest  and  their  prop- 
erty io  attachment.  It  would  be  difficult  to  reconcile  these  cases. 
I  do  not  find  any  well  considered  cases  where  the  question  has 
arisen  upon  the  statute  providing  for  the  taxation  of  personal  prop- 
erty, other  than  those  I  have  referred  to.  I  conclude,  therefore, 
that  the  plaintiff,  on  the  first  day  of  July,  1864,  was,  for  the  pur- 
pose of  taxation,  a  resident  of  the  town  of  West  Seneca.  Being  a 
resident  of  that  town,  and  having  personal  property  liable  to  taxa- 
tion, the  assessors  had  jurisdiction  to  include  that  property  in  the 
assessment  roll  of  that  town.  The  case  comes  within  the  principle 
of  Barhyte  v.  Shepard  (supra),  and  not  within  that  of  Mygatt  v. 
Washburn,  where  the  assessors  had  no  jurisdiction  of  the  person  of 
the  plaintiff,  and  no  right  to  take  any  action  on  the  subject.  Where 
the  principal  business  of  the  plaintiff  was  transacted  was  a  matter 
of  fact,  to  be  ascertained  by  proof  and  to  be  settled  by  judicial 
determination.  This  determination  was  to  be  made  by  the  as- 
sessors. It  was  to  be  made  upon  proof  presented,  or,  if  none  was 
presented,  by  the  best  means  of  knowledge  possessed  by  them. 
They  are  not  liable  for  an  erroneous  decision  of  a  question  which 
they  had  jurisdiction  to  decide. 

The  judgment  should  be  affirmed  with  costs. 

Earl,  C.  (dissenting). 


BOARD    OF    HEALTH    V.     HEISTEE.  445 


METROPOLITAN  BOARD  OF  HEALTH  V.  HEISTER. 

(Four  Cases.) 

Court  of  Appeals  of  New  York.     Marchy  1868. 
37  N.  Y.  661. 
Hunt,  Ch.  J. 

It  is  further  objected  that  the  act  violates  the  second  section  of 
the  first  article  of  the  State  Constitution,  which  declares  that  "the 
trial  by  jury,  in  all  cases  in  which  it  has  heretofore  been  used,  shall 
remain  inviolate  forever, ' '  and  the  sixth  section  of  the  same  article, 
which  provides  that  "no  person  shall  be  deprived  of  life,  liberty 
or  proprty  without  due  process  of  law."  The  argument  on  this 
point  has  been  conducted  by  Mr.  Heister's  counsel,  chiefly  upon  the 
allegation  that  on  the  question  of  nuisance  or  no  nuisance  the  party 
complained  of  had  a  right  to  the  opinion  of  a  jury,  before  his  right 
could  be  finally  disposed  of.  It  was  admitted  on  the  argument  by 
the  additional  counsel  that  a  court  of  equity  could  give  final  judg- 
ment without  calling  in  a  jury.  It  will  be  observed  that  in  each 
of  the  cases  now  before  us,  it  was  alleged  and  decided  that  the  pro- 
ceeding was  "dangerous  to  the  public  health."  This  was  in  addi- 
tion to  the  charge  that  it  was  a  nuisance. 

No  one  has  been  deprived  of  his  property  or  of  his  liberty  by 
the  proceedings  in  question.  The  commissioners  have  provided 
that  cattle  shall  not  be  driven  upon  certain  streets  except  at  certain 
hours  of  the  day.  They  have  also  provided  that  the  business  of 
slaughtering  cattle  shall  not  be  carried  on  in  the  city  of  New  York 
south  of  a  designated  line.  These  regulations  take  away  no  man's 
property.  If  Mr.  Heister  owns  cattle  his  ownership  is  not  inter- 
fered with.  He  may  sell,  exchange  and  traffic  in  the  same  manner 
as  any  other  person  owning  cattle  may  do.  If  he  owns  a  slaughter- 
house his  property  remains  intact.  He  may  sell  it,  mortgage  it, 
devise  it  or  give  it  away,  and  may  use  it  just  as  any  other  man  or 
all  other  men  in  the  State  combined  may  do.  Simply  the  health 
regulations  of  the  district  operate  upon  his  cattle  and  his  slaughter- 
house in  the  same  manner  that  they  do  upon  like  property  owned 
by  all  others,  and  the  use  of  the  streets  for  dangerous  purposes  or 
the  prosecution  of  a  business  dangerous  to  the  public  health  is 
regulated  by  the  ordinance  in  question.  This  practice  is  not  for- 
bidden by  the  Constitution,  and  has  been  recognized  from  the  or- 


446  THE   EXERCISE   OP   OFFICIAL   AUTHOBITT. 

ganization  of  the  State  government,  and  is  to  be  found  in  nearly 
every  city  or  village  charter  which  has  been  granted  by  the  legisla^ 
ture. 

Nor,  in  my  judgment,  is  there  any  greater  plausibility  in  the 
argument  that  the  act  violates  the  right  of  trial  by  jury.  The  Con- 
stitution recognized  the  fact  that  there  were  classes  of  cases  which 
had  not  been  and  need  not  be  tried  by  a  jury. 

I  hold  it  to  be  clear  that  in  questions  relating  to  the  public 
health,  where  the  public  interests  required  action  to  be  taken,  a 
jury  had  not  been  the  ordinary  tribunal  to  determine  such  ques- 
tions prior  to  the  adoption  of  the  Constitution  of  1846. 

These  acts  show  that  from  the  earliest  organization  of  the  gov- 
ernment, the  absolute  control  over  persons  and  property,  so  far  as 
the  public  health  was  concerned,  was  vested  in  boards  or  oflBcers, 
who  exercised  a  summary  jurisdiction  over  the  subject,  and  whp 
were  not  bound  to  wait  the  slow  course  of  the  law,  and  that  juries 
had  never  been  used  in  this  class  of  cases.  The  governor,  the 
mayor,  health  officers  under  various  names,  were  the  persons  en- 
trusted with  the  execution  of  this  important  public  function ;  and 
they  were  always  empowered  to  act  in  a  summary  manner. 
Scarcely  a  year  passes  or  did  pass  prior  to  1846,  in  which  the  legis- 
lature did  not  charter  some  city  or  village,  and  give  to  the  local 
powers  full  authority,  by  their  own  action  and  in  their  own  way, 
to  regulate,  abate  or  remove  all  trades  or  manufactures  that  might 
be  by  them  deemed  injurious  to  the  public  health.  I  have  exam- 
ined the  statutes  from  1832  onward,  and  find  that  scarcely  a  year 
passed  in  which  these  powers  were  not  given  to  many  cities  or  vil- 
lages by  orignal  authority  or  by  amendments  to  their  charters.  I 
see,  among  the  laws  of  the  session  just  closed,  several  of  the  same 
character  among  them,  one  to  incorporate  the  village  of  Qouv- 
emeur,  which  gives  the  trustees  full  power  to  prohibit  and  abate 
nuisances,  to  compel  the  owners  of  a  butcher's  stall,  sewer,  privy 
or  other  unwholesome  thing,  to  clc^anse  the  same  or  cause  the  same 
to  be  removed,  or  otherwise  disposed  of,  as  may  be  necessary  for 
the  public  good.    See  also  15  Wend.  262. 

I  do  not  doubt,  either,  that,  upon  general  principles  of  law,  and 
considering  them  as  nuisances,  the  right  of  regulating  the  use  of 
the  streets  by  droves  of  cattle,  and  of  removing  houses  for  their 
slaughter  from  particular  locations,  as  the  public  health  required, 
was  within  the  power  of  the  common  council  or  other  local  authori- 


BOARD     OF    HEALTH    V.     HEISTEE.  447 

ties,  independently  of  the  statute  by  which  it  was  given.  Van 
Wormer  v.  Albany,  15  Wend.  262 ;  3  Black.  Com.  b.  It  would  be 
diflScult  then,  to  say  that  the  power  given  by  this  act  of  1866,  was 
a  new  exercise  of  authority,  not  allowed  by  the  Constitution,  or 
that  it  was  a  case  in  which  a  jury  trial  had  heretofore  been  had. 

Before  leaving  the  consideration  of  this  constitutional  objection, 
it  ought,  perhaps,  to  be  observed  that  the  act  provides  for  notice 
to  the  party  affected,  before  the  judgment  finally  passes  against 
him.  In  substance,  the  board,  upon  the  evidence  before  it,  deter- 
mine that  a  prima  facie  case  exists  requiring  their  action.  In  the 
present  instance,  after  such  preliminary  determination  made,  no- 
tice was  given  to  Heister  of  what  had  been  done,  and  that  he  could 
be  heard  upon  the  subject,  with  his  witnesses  at  a  time  designated. 
This  gave  the  same  protection  to  all  his  rights  as  if  notice  had  been 
served  upon  him  before  any  preliminary  proceedings  had  been 
taken.  He  refuses  to  litigate  before  the  board  the  question  whether 
his  pursuit  is  dangerous  to  the  public  health,  but  places  himself  | 
upon  their  want  of  power  over  the  subject.  He  cannot  complain 
now,  that  their  judgment  upon  the  facts  is  to  be  held  conclusive 
upon  him. 

It  is  further  insisted  that  the  act  in  question  is  invalid,  in  that 
it  confers  judicial  power  upon  the  metropolitan  board  of  health. 

These  arguments  are  earnestly  pressed,  and  when  the  case  occurs 
where  they  necessarily  arise,  will  be  carefully  considered  and  de- 
cided.   In  my  opinion  they  do  not  now  arise. 

The  power  to  be  exercised  by  this  board  upon  the  subjects  in 
question  is  not  judicial  in  its  character.  It  falls  more  properly 
under  the  head  of  an  administrative  duty.  It  is  no  more  judicial 
than  the  action  of  commissioners  of  highways  in  laying  out  or  re- 
fusing to  lay  out  a  highway,  or  in  determining  the  necessity  of 
rebuilding  a  bridge  in  their  town.  It  is  no  more  judicial  than  is 
the  action  of  commissioners  of  excise  in  the  country,  or  of  the 
metropolitan  police  board,  who,  as  commissioners  of  excise,  dis- 
cuss the  question  of  whether  a  license  shall  be  granted  to  an  indi- 
vidual to  keep  an  inn  or  to  sell  spirituous  liquors.  The  qualifica- 
tions of  the  person  are  scanned,  the  place  proposed  for  the  sale  of 
liquors,  and  whether  the  applicant  has  the  accommodations  re- 
quired by  law,  the  public  necessity  or  propriety  of  such  permission 
to  sell,  are  examined  into  and  detennined.  But  such  powers  have 
never  been  held  to  be  of  a  judicial  character.  The  power  of  the 
metropolitan  board  to  act  upon  the  latter  subject  has  been  dis- 


448  THE   EXERCISE   OF    OmCIAL   AUTHOBITT. 

tinctly  sustained  in  this  court.  Metropolitan  Board  v.  Barre,  34 
N.  Y.  657. 

The  judgment  of  the  General  Term  in  each  case  should  be  re- 
versed and  judgment  ordered  for  the  appellants 

Woodruff,  Mason,  Bacon,  and  Dwight,  JJ.,  concurred. 

Miller,  J.  (dissenting.) 


RAYMOND  V.  PISH. 


Supreme  Court  of,,  Connecticut.    September,  1883. 
51  Conn.  80. 

Action  to  recover  damages  for  the  removal  of  brush  with  oysters 
growing  upon  it,  from  Pequonock  River,  in  the  town  of  Groton; 
brought  to  the  Superior  Court  in  New  London  county.  The  de- 
fendants justified  the  acts  complained  of  as  done  under  an  order  of 
the  board  of  health  of  the  town,  alleging  that  the  brush  was,  and 
had  been  condemned  as,  a  nuisance,  and  that  they  did  nothing  that 
it  was  not  necessary  to  do  to  remove  the  nuisance. 

Upon  these  facts  the  case  was  reserved  for  the  advice  of  this 
court. 

Park,  C.  J.  The  question  in  this  case  turns  upon  the  construc- 
tion to  be  given  to  the  first  and  second  sections  of  the  statute  witK 
regard  to  public  health  and  safety,  (Gen.  Statutes,  p.  258,)  which 
provides  as  follows:  "The  justice  of  the  peace  and  selectmen  in 
each  town  shall  constitute  a  board  of  health,  and  have  all  the  power 
necessary  and  proper  for  preserving  the  public  health  and  prevent- 
ing the  spread  of  malignant  diseases  therein,  and  may  appoint  its 
president  and  such  health  officers  or  health  committee  as  it  may 
deem  expedient,  and  delegate  to  them  any  of  its  powers;  and  the 
members  present  at  any  meeting  convened  as  the  board  shall  direct, 

shall  be  a  quorum  for  business Such  board,  or  sucK 

health  officers  or  health  committee,  shall  examine  into  all  nuisances 
and  sources  of  filth  injurious  to  the  public  health,  and  cause  to  be 
removed  all  filth  found  within  the  town  which  in  their  judgment 
shall  endanger  the  health  of  the  inhabitants:  and  all  expenses  for 
such  removal  shall  be  paid  by  the  person  who  placed  it  there,  if 


RAYMOND    V.    PISH.  449 

known,  and,  if  not  known,  by  the  town;  and  when  any  such  filth 
or  nuisance  shall  be  found  on  private  property,  such  board  shall 
notify  the  owner  or  occupant  of  such  property  to  remove  the  same 
at  his  expense,  within  such  time  as  the  board  shall  direct,  and  if 
he  shall  neglect  to  remove  it  he  shall  be  fined  not  less  than  twenty 
dollars  nor  exceeding  one  hundred  dollars  and  pay  such  expense 
and  costs  as  the  town  shall  incur  by  such  removal;  and  after  the 
expiration  of  such  time  such  board  shall  cause  such  filth  or  nuis- 
ance forthwith  to  be  removed  or  abated;  and  such  board,  or  such 
health  officer  or  committee  as  it  shall  direct,  may  enter  all  places 
where  such  board  shall  have  direct  cause  to  suspect  any  such  nuis- 
ance or  causes  of  filth  to  exist." 

In  the  month  of  May,  1881,  the  small  village  of  Pequonock  in 
the  town  of  Groton  was  sorely  afflicted  with  the  contagious  diseases 
of  scarlet  fever  and  diphtheria  of  a  malignant  character. 

The  attention  of  the  board  of  health  of  the  town  of  Groton  was 
called  to  the  subject,  meetings  were  held  by  the  board,  and  ex- 
aminations were  made  of  Pequonock  River,  and  various  other 
places  in  the  vicinity  of  the  village,  to  discover  the  cause  of  the 
malady. 

The  board  of  health  were  unable,  from  their  examinations  of  the 
river  and  other  places,  to  determine  with  certainty  what  caused  the 
malady,  and  thereupon  requested  the  assistance  of  the  State  board 
of  health.  Their  secretary  made  an  examination  of  the  river,  and 
afterwards  reported  to  the  town  board  that  the  brush  in  the  river 
with  oysters  thereon  were  a  nuisance.  The  town  board  afterwards 
on  the  10th  of  August,  1881,  had  another  hearing  regarding  the 
matter,  at  which  the  plaintiff  and  others  appeared,  and  were  fully 
heard.  At  this  meeting  the  board  passed  the  following  vote: 
"That  we  concur  with  the  state  board  in  their  recommendation 
that  the  brush  be  removed  as  a  nuisance."  Thereupon  the  board, 
by  their  secretary,  gave  the  plaintiff  and  others  written  notice  to 
remove  the  brush  owned  by  them  respectively  from  the  river, 
specifying  a  time  when  they  were  to  begin  to  do  it.  The  brush  was 
not  removed,  and  on  the  8th  day  of  December  following  the  board, 
with  some  new  members  who  had  been  elected  in  October  preced- 
ing, again  declared  by  a  vote  that  the  brush  in  the  river  was  a 
nuisance  and  injurious  to  the  public  health ;  and  again  ordered  the 
plaintiff  and  others  to  remove  the  brush  owned  by  them  respec- 
tively before  a  specified  day;  and  caused  due  notice  to  be  given  to 
29 


450  THE   EXERCISE   OF   OFFICIAL   AUTHOBITT. 

the  owners  of  the  action  of  the  board.  The  plaintiff  was  not 
present  at  this  meeting  of  the  board.  He  had  no  notice  that  it  was 
to  be  held,  and  had  no  knowledge  of  it  till  afterwards.  The  brush 
was  not  removed  by  the  plaintiff,  and  the  board,  by  the  hands  of 
the  defendants,  removed  and  destroyed  it,  with  the  oysters  thereon, 
doing  no  unnecessary  damage.  The  case  finds  that  the  board  acted 
in  good  faith  throughout  the  whole  transaction. 

The  case  further  finds  that  ''neither  the  brush,  nor  oysters,  nor 
both  combined,  were  the  origin  or  producing  cause  of  the  diseases, ' ' 
but  leaves  it  undetermined  "whether  they  may  not  have  furnished 
conditions  favorable  to  the  spread  and  continuance  of  the  diseases, 
and  to  making  them  more  malignant  than  they  otherwise  would 
have  been." 

The  malady  ceased  to  be  epidemic  about  the  first  of  September; 
and  after  that  time,  it  is  expressly  foimd,  that  the  brush  and  oys- 
ters were  not  a  nuisance. 

These  are  the  principal  facts  of  the  case,  and  they  make  the  lia- 
bility of  the  defendants  depend  lipon  the  construction  to  be  given 
to  the  statute  already  cited.  The  question  is,  does  the  statute  con- 
fer upon  the  board  of  health  the  right  to  determine  conclusively  in 
any  case  what  are  nuisances  and  sources  of  filth  which  endanger 
the  health  of  the  inhabitants;  so  that  if  they  act  in  good  faith, 
and  merely  err  in  judgment,  the  statute  will  justify  the  act  done, 
although  the  property  of  a  third  party  may  be  destroyed?  If  the 
statute  is  to  be  so  construed,  then  the  defendants  are  not  responsi- 
ble for  the  damage,  whatever  it  may  be,  that  they  have  caused  the 
plaintiff.  If  it  is  not  to  be  so  construed, — if  boards  of  health  must 
act  at  their  peril  in  cases  of  emergency, — then  the  defendants  are 
liable,  and  must  respond  in  damages  for  all  the  injury  caused  by 
their  acts. 

Before  coming  to  this  question  directly,  we  should  take  into 
consideration  the  object  of  this  statute,  which  professes  to  be 
enacted  for  the  presentation  of  the  "public  health  and  safety," 
It  is  well  known  that  diseases  of  the  most  contagious  and  malignant 
character  are  supposed  to  be  caused  by  poisonous  exhalations  from 
decaying  vegetable  and  animal  matter.  This  statute  is  based  upon 
that  fact  and  was  intended  to  furnish  a  remedy  in  cases  where 
such  diseases  are  spreading,  and  men,  women,  and  children  are 
stricken  down  and  dying  in  consequence  of  noxious  effluvia  from 
decaying  matter  and  filth  in  the  vicinity.  During  such  a  delay  an 
entire  village  might  become  depopulated.  What  shall  be  doneT 
Life  and  health  are  to  be  considered  on  the  one  side,  and  what  value 


RAYMOND     V.    FISH.  451 

there  may  be  in  nuisance  and  filth  on  the  other.  Life  and  health 
are  to  be  preserved  at  the  cost  of  nuisances  and  filth.  The  statute 
does  not  mean  to  destroy  property  which  is  not  in  fact  a  nuisance, 
but  who  shall  decide  whether  it  is  so  ?  All  legal  investigations  re- 
quire time,  and  cannot  be  tho-ught  of.  If  the  board  of  health  are 
to  decide  at  their  peril,  they  will  not  decide  at  all.  They  have  no 
greater  interest  in  the  matter  than  others,  further  than  to  do  their 
duty;  but  duty,  hampered  by  a  liability  for  damages  for  errors 
committed  in  its  discharge,  would  become  a  motive  of  very  little 
power. 

It  would  seem  to  be  absolutely  necessary  to  confer  upon  some 
constituted  body  the  power  to  decide  the  matter  conclusively,  and 
to  do  it  summarily,  in  order  to  accomplish  the  object  the  statute 
has  in  view.  "We  think  this  has  been  done.  We  think  the  board  of 
health  of  the  town  of  Groton  had  the  power  to  decide  conclusively, 
in  the  apparent  necessities  of  the  case,  that  the  brush  in  Pequonock 
river  was  a  nuisance,  endangering  the  life  and  health  of  the  in- 
habitants of  the  village. 

The  powers  of  the  board  in  these  respects  cannot  be  ques- 
tioned, for  they  are  expressly  conferred;  and  if  they  are  exer- 
cised in  good  faith,  and  with  proper  care  and  prudence,  in  the  man- 
ner prescribed  by  the  statute,  the  board  cannot  be  made  responsi- 
ble for  mere  errors  of  judgment,  whatever  may  be  the  consequence. 
And  we  think  a  like  construction  must  be  given  to  the  sections  of 
the  act  in  question  in  this  suit,  as  we  have  already  intimated.  The 
statute  commenced  by  declaring  that  the  board  of  health  "shall 
have  all  the  powers  necessary  and  proper  for  the  preservation  of 
the  public  health  and  the  prevention  of  the  spreading  of  malignant 
diseases. ' '  The  second  section  commences  by  declaring  that  it  shall 
be  the  duty  of  the  board  to  * '  examine  into  all  nuisances  and  sources 
of  filth  injurious  to  the  public  health,  and  cause  to  be  removed  all 
filth  found  within  the  town  which  in  their  judgment  shall  en- 
danger the  health  of  the  inhabitants."  Here  power  is  expressly 
given  to  decide  what  constitutes  filth,  and  if  they  merely  err  in 
judgment  there  can  be  no  redress.  This  is  conceded,  but  it  is  said 
that  the  statute  makes  a  distinction  between  nuisances  and  filth. 
What  distinction  there  can  be  in  fact  in  respect  to  their  baneful 
influence  upon  contagious  and  malignant  diseases  it  is  difficult  to 
see We  see  none,  and  clearly  none  exists.  And  fur- 
ther, by  the  common  law,  a  private  person  has  a  right  to  abate  a 
private  nuisance  that  does  him  harm,  without  resort  to  the  courts 


452  THE   EXEBCISE   OP    OFFICIAL   AUTHOBITY. 

for  redress.  But  in  such  case  he  abates  at  his  peril.  He  cannot 
justify  the  act  done  unless  he  proves  that  the  supposed  nuisance 
was  one  in  fact.  This  is  the  doctrine  the  plaintiff  insists  should 
govern  this  case.  But  unless  the  statute  goes  farther  than  this, 
nothing  was  accomplished  by  its  enactment,  and  neighborhoods 
afflicted  with  malignant  diseases  might  as  well  have  been  left  to 
their  rights  at  the  common  law. 

But  it  is  said  that  any  other  construction  of  the  act  renders  it 
unconstitutional,  and  for  the  reason  that  it  takes  away  the  right  of 
trial  by  jury ;  that  it  deprives  the  owner  of  his  property  without 
due  process  of  law ;  that  it  confers  judicial  powers  upon  a  tribunal 
not  warranted  by  the  constitution,  and  that  it  takes  private  prop- 
erty for  public  use  without  compensation. 

We  cannot  doubt  the  constitutionality  of  the  act 

when  rightly  considered.  It  is  nothing  more  nor  less  than  a  police 
regulation.  The  property  was  not  taken  for  public  use  within  the 
meaning  of  the  constitution.  It  was  destroyed  for  the  protection 
of  the  public  health. 

We  think  the  act  is  constitutional. 

We  think  there  is  nothing  in  the  claim  that  the  board  that  passed 
the  vote  declaring  the  brush  a  nuisance  and  injurious  to  the  pub- 
lic health  on  the  8th  of  December,  was  a  different  board  from  the 
one  that  passed  a  similar  vote  on  the  10th  day  of  August  of  the 
same  year,  because  it  was  composed  of  some  new  members  who 
had  been  elected  in  the  meantime.  The  board  was  the  same,  al- 
though all  the  members  might  be  different.  As  well  might  it  be 
claimed  that  the  Superior  Court  changes  as  often  as  different 
judges  preside. 

The  board  being  the  same,  it  might  well  act  in  December  upon 
what  it  had  done  in  August  preceding. 

We  further  think  that  there  was  no  error  committed  by  th«? 
board  in  removing  the  brush  in  December,  when  it  did  not  at  that 
time  endanger  the  life  or  health  of  the  inhabitants.  The  board 
refrained  from  removing  the  brush  in  August,  when  the  first  vote 
of  removal  was  passed,  through  fear  that  by  so  doing  the  poison- 
ous effluvia  would  bo  greatly  increased,  and  the  malady  which  then 
prevailed  would  be  aggravated  in  proportion.  It  became  neces- 
sary, therefore,  to  remove  the  brush  when  it  could  be  done  in  safety 
to  the  public  health.  Aud  further,  the  brush  was  removed  in  De- 
cember to  prevent  a  recurrence  of  the  malady  the  following  sum- 


MYGATT    V.    WASHBUBN.  453 

mer.  It  was  reasonable  to  suppose,  if  the  brush,  with  the  oysters 
upon  it,  had  caused  the  contagion  and  malignant  diseases  that 
afflicted  the  village  during  the  summer  preceding,  it  would  occasion 
like  results  the  following  summer.  We  think  there  was  no  error 
in  this  regard. 

Complaint  is  made  that  the  defendants  destroyed  the  oysters  as 
well  as  the  brush.  But  the  facts  of  the  case  furnish  no  foundation 
for  this  complaint.  The  court  has  found  that  the  defendants  did 
no  unnecessary  damage.  This  is  equivalent  to  finding  that  the 
oysters  were  so  attached  to  the  brush  that  separation  could  not  be 
made.    We  think  there  is  nothing  in  this  claim. 

We  advise  judgment  in  favor  of  the  defendants. 

In  this  opinion  the  other  justices  concurred ;  except  Granger,  J., 
who  dissented. 

See  United  States  v.  Ju  Toy,  198  U.  S.  253,  and  Bates  &  Guild  Co.  v. 
Payne,  194  U.  S.  107.  This  last  case  would  seem  to  hold  that  even  in 
the  absence  of  a  statute  to  that  effect  the  determination  of  an  admin- 
istrative officer  as  to  a  matter  within  his  jurisdiction  is  final  certainly  as 
to  the  facts  and  probably  also  as  to  a  question  of  mixed  law  and  fact, 
where  he  has  not  been  guilty  of  an  abuse  of  discretion.  This  principle  is 
also  enunciated  in  City  of  Salem  v.  Eastern  R.  R.  Co.,  98  Mass.  254,  infra. 


MYGATT  V.  WASHBURN. 

Court  of  Appeals  of  New  York.    June,  1857. 
15  N.  Y.  316. 

Denio,  C.  J.  The  act  relating  to  the  assessment  of  taxes  requires 
that  every  person  shall  be  assessed  in  the  town  or  ward  where  he 
resides  when  the  assessment  is  made,  for  all  personal  estate  owned 
by  him.  I  R.  S.  389,  sec.  5.  As  the  plaintiff  resided  in  Oxford, 
during  a  portion  of  the  year  of  1846,  and  changed  his  residence 
to  Oswego  while  the  proceedings  to  make  out  the  assessment  for 
that  year  were  going  on,  it  becomes  necessary  to  ascertain  when, 
in  the  course  of  these  proceedings,  the  assessment  shall  be  said  to 
be  made. 

In  my  opinion  the  assessment  should  be  consid- 
ered as  made  at  the  expiration  of  the  time  limited  for  making  the 
inquiry,  namely,  on  the  first  day  of  July.    If  there  is  any  change 


454  THE   EXERCISE   OP   OFFICIAL   AUTHOBITT. 

of  residence  or  in  the  ownership  of  the  property,  after  that  day, 
it  does  not  affect  the  assessment  roll.  The  inquiries  are  then  com- 
pleted. Any  changes  which  the  assessors  are  authorized  to  make 
after  that  time,  are  such  as  may  be  required  to  correct  mistakes. 
No  earlier  day  can  be  assumed,  because  what  is  done  by  one  or  all 
the  assessors  prior  to  the  first  of  July  is  inchoate  and  preparatory, 
and  liable  to  be  altered  according  to  their  final  judgment  on  the 
matter.  When  the  statute  speaks  of  the  time  * '  when  the  assessment 
is  made"  it  refers  to  the  binding  and  conclusive  act  which  desig- 
nates the  tax  payers  and  the  amount  of  taxable  property.  If  I  am 
correct  in  what  has  been  said,  it  follows  that  the  time,  referred  to 
in  the  statute,  is  the  first  day  of  July.  It  cannot  be  an  earlier  or  a 
later  day  without  involving  incongruities  which  we  cannot  sup- 
pose the  legislature  would  have  permitted  to  exist. 

The  plaintiff,  therefore,  was  not  subject  to  the  jurisdiction  of 
the  assessors.  In  placing  his  name  on  the  roll,  and  adding  thereto 
an  amount  as  the  value  of  his  personal  property  they  acted  with- 
out authority.  As  the  board  of  supervisors  was  obliged  by  law  to 
annex  a  tax  to  the  name  of  every  person  assessed  upon  the  roll,  and 
to  issue  a  warrant  for  the  collection  of  the  tax,  the  unauthorized 
act  of  the  assessors  was  the  means  by  which  the  property  of  the 
plaintiff'  was  procured  to  be  sold.  They  are,  therefore,  responsible 
to  the  plaintiff  for  the  damages  which  ensued.  It  was  not,  in  the 
view  of  the  law,  the  case  of  an  error  of  judgment.  It  is  a  salutary 
rule,  though  in  some  cases,  and  perhaps  in  the  one  before  us,  it 
may  operate  harshly,  that  a  subordinate  officer  is  bound  to  see  that 
he  acts  within  the  scope  of  the  authority  legally  committed  to  him. 
The  principle  is  too  well  settled  to  require  a  reference  to  authority ; 
but  its  application  to  the  case  of  assessment  of  a  person  not  liable 
to  taxation  in  the  town  or  district  in  which  the  assessment  is  made 
has  often  been  declared  in  the  courts  of  this  and  other  states. 
Suydam  v.  Keys,  13  John.  444 ;  Frosser  v.  Secor,  5  Barb.  607 ;  Peo- 
ple v.  The  Supervisors  of  Chenango  County,  supra;  Freeman  v. 
Kenney,  15  Pick.  44;  Lyman  v.  Fiske,  17  id.  231. 

The  judgment  of  the  Supreme  Court  should  be  affirmed. 
All   the   judges  concurred   in   affirming  the  judgment,   except 
Shankland,  J.,  who  dissented. 

Judgment  affirmed. 


See  also  American   School  of  Magnetic  Healing  y.   McAnnulty,  187 
U.  S.  94. 


BARCLAY    V.     COMMONWEALTH.  455 

C.    Enforcement  of  the  Law. 

1.    Judicial  Process. 

BARCLAY  V.  COMMONWEALTH. 

Supreme  Court  of  Pennsylvania.    1855. 
25  Penn.  Si.  503. 

Woodward,  J.  After  much  consideration  it  was  settled  in  Tag- 
garVs  Case,  9  Harris  527,  that,  on  conviction  for  a  continuing  nui- 
sance, the  defendant,  besides  being  sentenced  to  fine  and  imprison- 
ment, should  be  ordered  also  to  abate  the  nuisance ;  and  that  if  he 
failed  to  do  so,  a  writ,  founded  on  such  a  judgment,  might  issue  to 
the  sheriff,  requiring  him  to  abate  the  nuisance,  at  the  costs  of  the 
defendant. 

The  court  in  this  case  entered  no  judgment  against  the  defend- 
ant that  the  nuisance  should  be  abated,  but  ordered  the  sheriff  to 
abate  it  by  removing  the  barn. 

This  was  erroneous,  not  only  because  the  defendant  should  have 
been  sentenced,  as  in  Taggart's  Case,  but  because  of  the  order  for 
the  removal  of  the  barn.  The  defendant  was  acquitted  on  the  first 
count,  which  charged  the  barn  with  being  a  nuisance,  and  was  con- 
victed only  on  the  second  count,  wherein  the  erection  of  the  bam 
is  alleged  by  way  of  inducement  to  the  offence,  which  is  described 
as  putting  hay,  straw  and  other  products  of  the  farm  in  said  barn, 
and  keeping  horses,  mules,  cattle  and  other  animals  in  and  about 
said  barn,  and  in  the  yard  adjacent  thereto,  and  feeding  the  said 
cattle,  horses  and  other  animals  with  the  aforesaid  hay,  and  straw 
and  other  products  in  said  bam,  and  in  the  said  yard  near  the 
aforesaid  springs,  &c.  The  offence  laid  in  this  count  consisted  in 
the  use  made  of  the  bam  and  yard  in  close  proximity  to  the  springs, 
and  the  nuisance  would  be  effectually  abated  by  discontinuing  such 
use.  Where  an  erection  or  structure  itself  constiutes  a  nuisance, 
and  where  it  is  put  up  in  a  public  street,  its  demolition  or  removal 
is  necessary  to  the  abatement  of  the  nuisance;  but  where  the 
offence  consists  in  the  wrongful  use  of  a  building,  harmless  of  it- 
self, the  remedy  is  to  stop  such  use,  not  to  tear  down  or  remove  the 
building  itself.  The  barn  may  be  used  for  storing  hay  and  grain 
without  annoyance  to  the  public,  but  for  stabling  and  feeding 
cattle  it  cannot  be.  The  public  are  entitled  to  pure  waters  from 
the  springs  in  question,  and  must  be  protected  in  the  enjoyment  of 


456  THE    EXERCISE    OF    OFFICIAL    AUTHOBITY. 

this  right.  The  courts  should  take  effectual  measures  to  prevent  the 
barn  and  yard  from  being  used  in  the  manner  complained  of,  and 
to  compel  the  defendant  to  put  and  keep  them  in  such  condition 
as  will  not  corrupt  the  springs.  If  he  fail  to  do  so  after  being 
sentenced,  the  sheriff  should  be  ordered  to  do  it  at  his  costs;  and 
if  necessary,  the  court  can  restrain  further  wrongdoing  on  the  part 
of  the  defendant,  by  requiring  him  to  find  security  to  be  of  good 
behavior. 

The  sentence  is  reversed  and  the  record  remanded  to  the  Quar- 
ter sessions,  with  directions  to  proceed  and  sentence  the  defendant 
according  to  law. 


CITY  OF  SALEM  V.  EASTERN  RAILROAD  COMPANY. 

Supreme  Judicial   Court  of  Massachusetts.     January,  1868. 

98  Mass.  431. 

Contract  to  recover  twenty-three  hundred  and  sixty-three  dol- 
lars and  eighty-six  cents,  with  interest  from  the  date  of  demand, 
expended  by  the  plaintiffs  in  digging  a  canal  for  the  purpose  of 
abating  a  nuisance  in  the  mill  pond  in  Salem. 

Wells,  J.  This  action  is  brought  under  Gen.  Sts.,  c.  26,  sec. 
10,  against  the  defendants  as  the  party  who  caused  the  nuisance 
complained  of  and  alleged  to  have  been  removed.  Several  objec- 
tions are  made  to  the  maintenance  of  the  action. 

6.  The  most  important  and  the  most  difficult  question  in  the  case 
relates  to  the  effect  of  the  orders  of  the  board  of  health  by  which 
the  existence  of  the  nuisance  was  ** found  and  determined;"  and 
that  it  was  created  and  maintained  by  the  defendants ;  and  which 
also  directed  its  removal  by  the  defendants. 

The  plaintiff's  counsel  contend  that  the  proceedings  of  the  board 
of  health  are  quasi  judicial ;  and  that  the  determination  and  orders 
made  in  that  capacity  are  adjudications  conclusive  against  the  de- 
fendants upon  all  the  facts  involved  in  those  determinations.  If 
this  be  so,  the  defendants  are  precluded  from  denying  the  exist- 
ence and  alleged  cause  of  the  nuisance,  and  their  duty  to  re- 
move it.     ....••••  • 


CITY     OP     SALEM    V.     EASTERN    R.     R.     CO.  457 

But  the  court  are  of  opinion  that,  in  a  suit  to  recover  expenses 
incurred  in  removing  a  nuisance,  when  prosecuted  against  a  party 
on  the  ground  that  he  caused  the  same,  but  who  was  not  heard, 
and  had  no  opportunity  to  be  heard,  upon  the  questions  before  the 
board  of  health,  such  party  is  not  concluded  by  the  findings  or 
adjudications  of  that  board,  and  may  contest  all  the  facts  upon 
which  his  liability  is  sought  to  be  established.  He  is  neither  party 
nor  privy  to  those  adjudications;  he  has  no  right  of  appeal,  and 
no  other  means  by  which  to  revise  the  proceedings  or  to  correct 
errors,  either  by  law  or  fact,  therein.  Parties  similarly  situated  in 
respect  to  judgments  in  courts  of  law  may  impeach  them  collat- 
erally. 

The  law  applicable  to  the  judgments  rendered  upon  default  of 
parties  who  have  not  been  duly  served  with  process  affords  analo- 
gies which  bear  upon  this  question. 

Adjudications  which  stand  merely  as  proceedings  in  rem  cannot, 
as  a  general  rule,  be  made  the  foundation  of  ulterior  proceedings 
in  personam,  so  as  to  conclude  a  party  upon  the  facts  involved. 
In  most  eases  of  suits  which  are  in  their  nature  proceedings  in 
rem,  and  so  designated,  personal  or  public  notice  to  parties  inter- 
ested is  required  to  be  given ;  and  they  are  entitled  to  appear  and 
be  heard,  and  to  have  such  rights  in  relation  to  the  proceedings  as 
are  accorded  to  parties  litigant.  Against  such  parties,  whether 
they  have  actually  appeared  or  not,  the  adjudication  is  held  to  be 
conclusive  upon  the  facts  which  are  made  the  ground  of  the  judg- 
ment; when  those  facts  are  again  brought  in  question  in  ulterior 
or  collateral  proceedings.  But  such  effect  is  due  to  the  fact  that 
they  were  so  made  parties  to '  the  proceedings.  The  Mary,  9 
Cranch  126,  144 ;  Whitney  v.  Walsh,  1  Cush.  29 ;  Scott  v.  Shear- 
man, 2  W.  Bl.  977 ;  Hollingsworth  v.  Barbour,  4  Pet.  466,  474. 

When  there  appears  to  have  been  no  notice  to  the  parties  to  be 
affected,  and  no  opportunity  afforded  them  to  be  heard  in  defense 
of  their  rights,  whatever  operation  the  adjudication  may  have  upon 
the  res,  and  however  conclusive  it  may  be  held  for  the  protection 
of  those  who  act,  or  derive  rights  under  it,  the  adjudication  itself 
can  have  no  valid  operation  against  parties  who  may  be  named  in 
the  proceedings.  If  it  proceed  to  declare  any  obligation  or  impose 
any  liability  upon  such  parties,  they  may,  in  any  subsequent  suit 
to  enforce  it,  deny  the  validity  of  the  judgment,  and  controvert 
the  facts  upon  which  it  was  based.    BoswelVs  Lessee  v.  Otis,  9  How. 


458  THE   EXERCISE   OF   OFFICIAL   AUTHOBITT. 

336;  Harris  v.  Hardeman,  14  How.  334  j  McKee  v.  McKee,  14  Penn. 
St.  231. 

We  think  that  these  principles  apply  to  the  proceedings  of  a 
board  of  health.  Their  determination  of  questions  of  discretion 
and' judgment  in  the  discharge  of  their  duties  is  undoubtedly  in 
the  nature  of  a  judicial  decision ;  and,  within  the  scope  of  the  power 
conferred,  and  for  purposes  for  which  the  determination  is  re- 
quired to  be  made,  it  is  conclusive.  It  is  not  to  be  impeached  or 
set  aside  for  error  or  mistake  of  judgment ;  nor  to  be  reviewed  in 
the  light  of  new  or  additional  facts.  The  officer  or  board  to  whom 
such  determination  is  confided,  and  all  those  employed  to  carry  it 
into  effect,  or  who  may  have  occasion  to  act  upon  it,  are  protected 
by  it,  and  may  safely  rely  upon  its  validity  for  their  defence.  It 
is  in  this  sense  that  such  adjudications  are  often  said  to  be  con- 
clusive against  all  the  world;  and  they  are  so  far  as  the  res  is 
concerned.  The  statute  and  the  public  exigency  are  sufficient  to 
justify  the  omission  of  previous  notice,  hearing  and  appeal.  But 
this  exigency  is  met  and  satisfied  by  the  removal  of  the  nuisance. 
As  a  matter  of  police  regulation,  the  proceedings  and  the  authority 
of  the  board  end  here.  When  the  city  comes  to  seek  its  remedy 
over;  to  throw  upon  some  individual  supposed  to  have  caused  the 
nuisance,  the  expenses  of  removal  which  it  has  incurred  in  the  first 
instance  as  the  representative  of  the  public;  there  seems  to  be  no 
reason  founded  either  in  the  public  exigency  or  in  the  justice  of 
the  case  that  requires  or  warrants  the  holdings  of  such  ex  parte 
adjudications  as  final  and  conclasive  to  establish  the  facts  upon 
which  the  claim  rests. 

It  is  said  that  this  obligation  is  imposed  upon  the  party  by  the 
express  terms  of  the  statute,  as  the  direct  and  necessary  conse- 
quence of  the  disregard  of  the  order  from  the  board  of  health.  If 
this  were  so,  we  should  be  obliged  to  hold  that  no  adjudication 
could  be  made  in  the  premises,  and  no  order  issued,  until  the  par- 
ties had  been  notified  and  heard  in  their  defence.  Capel  v.  Child^ 
2  Cr.  &  Jerv.  558 ;  Bonaker  v.  Evans,  16  Q.  B.  162.  But  we  do  not 
think  that  this  is  the  effect  of  the  statute.  However  it  may  be  as  to 
the  penalty  imposed  upon  the  owner  or  occupant  by  sec.  8,  it  is 
clear  that  it  cannot  be  so  with  the  liability  incurred  under  sec.  10. 
That  liability  is  imposed  upon  a  class  which  does  not  correspond 
with  the  one  to  wliich  the  order  is  required  to  be  addressed.  It 
differs  by  including  any  "other  peraon  who  caused  or  permitted" 
the  nuisance.  No  order  is  required  to  issue  to  such  other  person. 
And,  if  it  should  issue,  it  would  be  without  authority  of  \aw.    It 


CITY    OF    SALEM    V.    EASTERN    B.     R.     CO.  459 

could  have  no  other  effect  than  as  notice  to  the  party.  Actual 
notice  from  the  board  of  health  of  the  existence  of  the  nuisance 
is  all  that  such  "other  person"  is  entitled  to  receive.  But  notice 
of  the  existence  of  the  nuisance  does  not  put  him  in  the  position 
of  a  party  to  the  proceedings  from  which  the  adjudication  results; 
and  even  this  notice  was  not  required  in  the  earlier  statutes.  Rev. 
Sts.  c.  21,  sec.  11. 

The  jurisdiction  necessary  to  give  validity  to  the  judicial  decrees 
which  will  be  binding  in  personam  is  not  acquired  from  the  mere 
fact  of  the  presence  of  the  person  within  the  territorial  limits  over 
which  the  tribunal  may  exercise  jurisdiction.  At  common  law,  the 
actual  presence  of  the  party  in  court  was  required ;  and  if  he  did  not 
appear  his  presence  was  enforced  by  peremptory  process.  It  is  only 
by  force  of  statutes  that  judgments  may  be  entered  upon  default 
after  service  of  process  or  notice  upon  the  party.  Picquet  v.  Swan, 
5  Mason  35.  Judgments  are  no  more  invalid  when  the  defendant 
is  beyond  the  reach  of  the  process  of  the  court,  than  when,  being 
within  the  jurisdiction,  no  opportunity  is  afforded  him  to  appear 
and  defend  his  interests.  It  is  well  settled  also  that,  where  there  is 
jurisdiction  for  a  special  purpose  only,  any  attempt  to  exercise  a 
general  power  will  be  void  as  to  the  excess.  Bates  v.  Delavan,  5 
Paige  299. 

From  the  foregoing  considerations  we  are  led  to  construe  the 
statutes  in  question  as  conferring  no  judicial  power  upon  the  board 
of  health  beyond  that  which  is  absolutely  essential  to  the  per- 
formance of  their  administrative  functions  for  the  accomplish- 
ment of  the  end  contemplated,  to  wit,  the  summary  abatement  of 
nuisances  of  the  class  indicated.  The  absence  of  any  provision  for 
previous  notice  and  hearing,  the  summary  execution  of  the  order 
without  means  of  redress  or  relief  by  appeal  or  otherwise  against 
error  and  injustice,  would  make  the  proceedings  violate  the  funda- 
mental principles  of  justice  universally  recognized,  if  they  should 
be  held  to  establish,  by  an  unalterable  and  absolutely  conclusive 
decree,  the  personal  liability  of  the  parties  who  might  be  named 
by  the  board  of  health  as  having  caused  or  permitted  the  nuisance. 
We  cannot  yield  to  a  construction  which  would  lead  to  such  re- 
sults. By  the  narrower  construction  which  we  have  indicated,  the 
statute  will  have  its  full  and  effective  operation  as  a  police  regu- 
lation, while  parties  who  are  charged  with  responsibility  for  the 
expenses  incurred  will  not  be  deprived  of  that  full  opportunity  of 
defense  which  is  essential  to  the  due  administration  of  justice  in 
whatever  form  of  judicial  proceedings  it  may  be  undertaken. 


460  THE   EXEBCISE   OF   OFFICIAL   AUTHOKITY. 

The  record  of  proceedings  of  the  board  of  health  is  competent 
evidence  in  the  present  case  for  some  purposes.  It  proves  the  fact 
that  such  procedings  were  had,  which  is  a  necessary  preliminary 
step.  So  far  as  the  proceedings  were  within  and  in  accordance 
with  the  authority  and  duties  of  the  board,  they  are  entitled  to  the 
presumption  that  whatever  was  done  was  rightly  done;  and  may 
be  held  as  prima  facie  evidence  of  the  existence  of  a  nuisance 
which  warranted  the  board  of  health  in  taking  action  and  incurring 
expense  for  its  removal.  But  it  is  not  evidence  that  the  nuisance 
was  caused  by  the  defendants,  in  the  manner  stated,  or  in  any  man- 
ner ;  and  all  the  facts,  upon  which  it  is  sought  to  charge  the  defend- 
ant with  liability,  are  open  to  be  tried  and  determined  by  the  proofs 
in  the  case. 

The  case  will  therefore  stand  for  trial. 


CITY  OF  TAUNTON  V.  TAYLOR. 

'Supreme  Judicial  Court  of  Massachusetts.    November,  1874, 
116  Massachusetts  254. 

Bill  in  equity  in  the  name  of  the  city  of  Taunton,  and  signed 
by  Daniel  L.  Mitchell  as  mayor  thereof,  filed  August  20,  1872,  and 
containing  the  following  allegations : 

That  by  an  ordinance  of  said  city  it  is  provided  that  *  *  two  mem- 
bers of  the  board  of  mayor  and  aldermen,  and  three  members  of 
the  common  council,  are  hereby  constituted  a  board  of  health  of 
the  city  of  Taunton,  with  all  the  powers  vested  in  boards  of  health 
by  the  general  laws  of  the  Commonwealth;"  and  that  two  mem- 
bers of  the  board  of  aldermen,  and  three  members  of  the  common 
council,  named  in  the  bill,  constituted  the  board  of  health  of  Taun- 
ton  for  this  year: 

That  on  August  15,  1872,  an  order  was  passed  by  said  board  of 
health,  and  recorded  in  the  records  of  the  city,  as  follows:  "Or- 
dered that  the  exercise  of  the  trade  or  employment  of  preparing 
tripe,  manufacturing  neat's-foot  oil,  tallow  and  glue  stock,  and 
the  boiling  and  trying  of  bones,  hoofs,  heads,  refuse  and  partially 
decayed  animal  matter,  and,  as  a  part  of  such  trade  or  employ- 
ment, the  storing  about  the  premises  where  such  business  is  carried 
on  of  putrid  meats,  bones,  heads,  legs  and  the  various  other  ma- 


CITY    OP    TAUNTON    V.     TAYLOR.  461 

terials  from  which  offensive  smells  emanate,  which  are  used  in 
such  trade  or  employment,  be  and  the  same  hereby  is  forbidden 
within  the  limits  of  the  city  of  Taunton;" 

That  the  defendant  was  carrying  on  in  Taunton  the  trade  or  em- 
ployment prohibited  in  said  order,  and  on  August  17  was  served 
with  a  notice  in  writing,  signed  by  all  the  members  of  the  board 
of  health,  of  the  passage  of  the  order,  and  that  it  would  be  en- 
forced if  not  complied  with  within  seven  days ;  that  on  August  28 
said  board  of  health  passed  another  order,  instructing  the  city 
marshal  to  visit  the  defendant's  manufactory  and  take  such  means 
as  were  necessary  to  enforce  the  former  order  of  the  board;  and 
that  the  defendant  declined  to  comply  with  the  order  of  the  board, 
and  threatened  to  resist  with  force  every  attempt  to  enforce  it. 

The  bill  prayed  for  a  subpoena,  and  an  injunction  to  the  defend- 
ant, his  servants,  workmen  and  agents,  commanding  them  to  desist 
and  refrain  from  exercising,  within  the  limits  of  the  city  of  Taun- 
ton, the  trade  or  employment  set  forth  in  the  order  of  the  board  of 
health.  Upon  the  filing  of  the  bill  a  temporary  injunction  was 
granted. 

The  answer  of  the  defendant  contained  a  demurrer  to  the  bill, 
because  it  did  not  appear  thereby  that  the  plaintiff  corporation 
was  a  party  to  the  suit,  or  entitled  to  the  relief  prayed  for,  or  had 
any  right  in  equity  to  proceed  against  the  defendant  as  set  forth 
in  the  bill ;  and  also  the  following  allegations : 

*  *  That  the  bill  is  brought  without  the  authority  or  direction  of  the 
city  of  Taunton,  or  of  the  city  council  thereof,  or  of  any  person  or 
persons  duly  authorized  to  act  for  the  city  of  Taunton  or  the  city 
council  thereof,  and  that  Daniel  L,  Mitchell  had  no  authority  to 
institute  these  proceedings  in  equity  against  this  defendant,  either 
as  mayor  of  said  city  of  Taunton,  or  as  the  agent  of  said  city  of 
Taunton,  or  as  an  individual  citizen  thereof,  and  that  his  signature 
to  the  bill  is  made  without  authority  in  law  or  equity." 

That  the  order  set  forth  in  the  bill  was  unreasonable,  illegal  and 
void;  and  that  the  board  of  health  of  the  city  of  Taunton  had  no 
authority  to  pass  or  enact  it. 

That  the  defendant,  believing  and  relying  on  the  representa- 
tions of  the  persons  named  that  they  were  the  legally  appointed 
and  constituted  board  of  health  of  the  city,  did  on  September  12, 
1872,  appeal  from  said  order,  and  applied  to  the  Superior  Court 
for  a  jury,  which  was  duly  empanelled,  and  on  October  17,  after 
a  trial  and  a  view  of  the  premises,  returned  a  verdict  by  which 


462  THE   EXERCISE   OP   OFFICIAL   AUTHOBITY. 

they  **  decided  that  the  order  of  the  board  of  health  should  be  al- 
tered as  follows:  That  Mr.  A.  Taylor,  having  selected  a  suitable 
locality  within  the  limits  of  the  city  of  Taunton,  shall  confer  with 
the  board  of  health  after  having  obtained  in  writing  the  unani- 
mous consent  of  the  residents  within  a  radius  of  one-half  a  mile  of 
the  same;"  and  that  the  proceedings  before  the  jury  were  null 
and  void  by  reason  of  the  verdict  being  unintelligible  and  plainly 
erroneous  and  beyond  the  authority  of  the  jury,  and  by  reason 
of  the  order  of  prohibition  being  unauthorized  and  void  as  before 
set  forth. 

That  the  trade  or  employment  of  preparing  tripe,  manufactur- 
ing neat's-foot  oil,  tallow  and  glue  stock,  and  the  boiling  and  try- 
ing of  bones,  hoofs  and  heads,  were  divers  and  distinct  branches 
of  business,  and  were  none  of  them  nuisances  or  hurtful  to  the  in- 
habitants of  the  city  of  Taunton,  or  dangerous  to  the  public  health, 
or  attended  with  noisome  and  injurious  odors,  or  injurious  to  the 
estates  of  the  citizens  of  Taunton,  but  contrariwise  were  necessary 
and  useful  branches  of  business ;  nor  was  the  preparing  of  tripe  or 
the  manufacture  of  neat's-foot  oil,  tallow  and  glue  stock,  or  the 
boiling  and  trying  of  bones,  carried  on  by  this  defendant  so  as  to 
be  a  nuisance,  or  hurtful,  or  dangerous,  or  injurious  as  above  set 
forth. 

The  plaintiff  filed  a  general  replication.  The  parties  afterwards 
agreed  to  submit  the  case  to  the  court  upon  the  bill  and  answer 
and  a  statement  of  facts 

The  verdict  set  out  in  the  answer  has  been  accepted  by  the  Su- 
perior Court,  and  no  further  action  has  been  taken  by  that  court 
thereon. 

It  is  further  agreed  that  the  rights  of  the  parties,  if  they  have 
any,  to  submit  an  issue  of  fact  to  a  jury  as  to  whether  the  busi- 
ness, as  carried  on  by  the  defendant,  was  an  offensive  business 
within  the  meaning  of  the  statute,  are  hereby  waived,  and  that  the 
parties  expressly  reserve  all  objections  to  the  form  of  proceedings. 

Gray,  C.  J.  This  is  a  bill  in  equity  to  restrain  the  exercise  by 
the  defendant  of  an  offensive  trade  in  violation  of  an  order  of  the 
board  of  health  of  the  city  of  Taunton.  Various  objections  are 
made  to  the  granting  of  the  relief  prayed  for,  but  we  are  of  opin- 
ion that  none  of  them  can  be  sustained. 

1.  By  the  Qcn.  Sts.  c.  26,  §  2,  no  different  provision  being  made 
by  law,  the  city  council  might  appoint  a  joint  committee  of  their 
body  a  board  of  health 

2.  By  the  same  statute  the  board  of  health  may  forbid  the  exer- 


CITY    OF    TAUNTON    V.    TAYLOK.  463 

eise,  within  the  limits  of  the  city,  or  in  any  particular  locality 
thereof,  of  **any  trade  or  employment  which  is  a  nuisance  or  hurt- 
ful to  the  inhabitants,  or  dangerous  to  the  public  health,  or  the 
exercise  of  which  is  attended  by  noisome  and  injurious  odors,  or 
is  otherwise  injurious  to  their  estates."  §§  52,  60,  Any  such  order  ot" 
prohibition  is  to  be  served  upon  the  occupant  or  person  having 
charge  of  the  premises  where  such  trade  or  employment  is  exercised, 
and  if  he  refuses  or  neglects  for  twenty-four  hours  to  obey  it,  ' '  the 
board  shall  take  all  necessary  measures  to  prevent  such  exercise.'* 
§  55.  Any  person  aggrieved  by  such  order  may  appeal  therefrom, 
and,  upon  application  to  the  Superior  Court,  or  a  justice  thereof 
in  vacation,  within  three  days  from  the  service  thereof,  may  obtain 
a  warrant  for  a  jury,  to  be  empanelled  as  in  the  case  of  the  laying 
out  of  highways.  §  56.  The  order  is  to  be  obeyed  pending  the 
appeal.  §  57.  "  The  verdict  of  the  jury,  which  may  either  alter 
the  order,  or  affirm  or  annul  it  in  full,  shall  be  returned  to  the  court 
for  acceptance,  as  in  case  of  highways;  and  said  verdict,  when 
accepted,  shall  have  the  authority  and  effect  of  an  original  order 
from  which  no  appeal  had  been  taken. "    §  58. 

The  authority  of  the  legislature  to  confer  powers  of  this  char- 
acter, for  the  protection  of  the  public  health  and  the  suppression  of 
nuisances,  upon  municipal  boards  or  officers,  is  well  settled.  Such 
powers  must  be  summarily  exercised,  in  order  to  accomplish  their 
object.  To  allow  the  offensive  trade  to  be  carried  on  until  it  had 
been  decided  by  a  jury  to  be  a  nuisance,  and  the  questions  of  law 
arising  upon  such  a  trial  had  been  determined  by  the  court,  would 
defeat  the  purpose  of  the  statute.  It  is  a  case  in  which  the  pri- 
vate rights  must  be  held  subordinate  to  the  public  welfare,  and 
falls  within  the  strictest  interpretation  of  the  maxim,  Salus  populi 
suprema  lex.  The  rights  of  any  person  to  be  affected  by  the  order 
of  prohibition  are  reasonably  secured  by  requiring  the  order  to 
be  served  upon  him  or  the  person  in  charge  of  his  business,  and  by 
allowing  him  an  appeal  to  a  jury,  to  be  empanelled  immediately, 
without  waiting  for  a  regular  term  of  court,  and  by  whose  verdict 
the  order  may  be  altered,  annulled  or  affirmed.  Belcher  v.  Farrar 
8  Allen  325. 

The  determination  of  the  board  of  health  is  not  a  merely  minis- 
terial act;  but  is  quasi  judicial,  in  the  sense  that  it  is  not  to  be 
contested  or  revised,  except  in  the  manner  provided  in  the  statute. 
The  allegation  in  the  defendant's  answer,  that  the  trade  which  h6 
carried  on  was  not  a  nuisance,  therefore,  stated  no  defence  which 
could  have  availed  him  at  any  stage  of  this  cause. 


464  THE   EXEBCISE   OF   OFFICIAL   AUTHOKITY. 

The  case  of  Salem  v.  Eastern  BaUroad,  98  Mass.  431,  diflfered 
from  this  in  being  a  suit  to  recover  the  expenses  of  removing  a 
nuisance  in  accordance  with  a  special  order  under  the  Gen.  Sts.  c. 
26,  §§  8-10,  respecting  which  the  defendant  had  had  no  opportunity 
to  be  heard,  either  before  the  board  of  health  or  on  appeal ;  and  the 
decision  allowing  the  defendant  to  contest  the  facts  found  by  the 
order  was  based  upon  that  distinction. 

3.  But  an  order  of  the  board  of  health,  under  the  Gen.  Sts.  c. 
26,  §  52,  is  not  in  the  nature  of  an  adjudication  of  a  particular 
case,  but  of  a  general  regulation  of  the  trade  or  employment  men- 
tioned therein.  It  is  not  to  be  construed  with  technical  strictness, 
but  with  the  same  liberality  as  all  votes  and  proceedings  of  munic- 
ipal bodies  or  officers  who  are  not  presumed  to  be  versed  in  the 
forms  of  law;  and  every  reasonable  presumption  is  to  be  made  in 
its  favor.  Commonwealth  v.  Patch,  97  Mass.  221.  It  need  not 
state  in  direct  terms  that  the  trade  which  it  prohibits  is  a  nui- 
sance. It  is  sufficient  if  the  order  clearly  shows  that  in  the  opinion 
of  the  board  of  health  the  exercise  of  such  trade  will  be  hurtful  to 
the  inhabitants,  or  injurious  to  the  public  health,  or  be  attended  by 
noisome  and  injurious  odors. 

The  trade  or  employment  described  in  the  order  of  prohibition 
now  before  Us  is  a  single  trade  or  employment,  which  includes  not 
only  "preparing  tripe,  manufacturing  neat's-foot  oil,  tallow  .ind 
glue  stock,  and  the  boiling  and  trying  of  bones,  hoofs,  heads,  refuse 
and  partially  decayed  animal  matter, '  *  but  also,  "  as  a  part  of  such 
trade  or  employment,  the  storing  about  the  premises  where  such 
business  is  carried  on  of  putrid  meats,  bones,  heads,  legs  and  the 
various  other  materials  from  which  offensive  smells  emanate,  which 
are  used  in  such  trade  or  employment."  The  very  terms  of  this 
description  sufficiently  manifest  and  declare  the  opinion  of  the 
board  of  health  that  the  trade  or  employment  in  question  is,  to 
say  the  least,  attended  by  noisome  and  injurious  odors.  The  order 
was  therefore  a  valid  exercise  of  the  power  conferred  upon  the 
board  of  health  by  the  statute. 

4.  The  verdict  of  the  jury  in  this  case  did  not  annul  the  order 
of  the  board  of  health,  or  affect  it  otherwise  than  by  permitting 
the  defendant,  after  selecting  a  suitable  locality,  and  obtaining  the 
consent  in  writing  of  all  those  residing  within  half  a  mile  thereof, 
to  confer  with  the  board  of  health.  It  is  not  pretended  that  he  has 
obtained  such  consent  of  those  residing  in  the  neighborhood  of  his 
works;  and  if  he  had,  the  verdiot  merely  permitted  him  to  apply 
anew  to  the  board  of  health.     If  the  defendant  was  dissatisfied 


CITY    OF    TAUNTON    V.     TAYLOR.  465 

with  the  verdict,  his  remedy  was  by  application  to  the  Superior 
Court  to  set  it  aside,  and,  if  aggrieved  by  any  ruling  of  that  court 
in  matter  of  law,  by  bringing  the  question  before  this  court  on  ex- 
ceptions or  appeal.  Taylor  v.  Taunton,  113  Mass.  — --;  Tucker  v. 
Massachusetts  Central  Railroad,  ante,  124.  If  the  verdict,  as  the 
defendant  suggests,  should  be  held  so  indefinite  as  to  be  a  nullity, 
his  position  would  not  be  strengthened.  Whether  the  verdict  is 
good  or  bad,  the  order  of  the  board  stands. 

5.  The  board  of  health,  in  exercising  this  and  like  powers  under 
the  statute,  acts  in  behalf  of  all  the  inhabitants  of  the  city.  It  is 
expressly  charged  by  the  Gen.  Sts.  c.  26,  §  55,  to  take  all  necessary 
measures  to  prevent  the  exercise  of  any  trade  in  violation  of  its 
order;  and  for  that  purpose  it  may,  without  special  authority, 
bring  a  suit  in  the  name  of  the  city,  Winthrop  v.  Farrar,  11  Allen 
398 ;  Salem  v.  Eastern  Railroad,  98  Mass.  431 ;  Watertown  v.  Mayo, 
.109  Mass.  315.  In  such  a  suit,  as  in  any  other  lawfully  brought  in 
the  name  of  the  city,  the  bill  may  properly  be  signed  by  the  mayor. 
Central  Bridge  v.  Lowell,  15  Gray  106.  122 ;  Nichols  v.  Boston,  98 
Mass.  39. 

6.  It  is  only  when  the  plaintiff  takes  the  same  position  as  if  he 
had  demurred  in  an  action  at  law,  and  sets  down  the  cause  for 
hearing  upon  the  bill  and  answer,  and  thereby  precludes  the  de- 
fendant from  proving  his  allegations,  that  the  statements  in  the 
answer  are  to  be  taken  to  be  true.  Perkins  v.  Nichols,  11  Allen  542. 
But  in  the  present  case  the  plaintiff  filed  a  general  replication,  and 
the  parties  afterwards  submitted  the  case  to  the  decision  of  the 
court  upon  an  agreed  statement  of  facts.  The  allegations  in  the 
answer  are  not,  therefore,  to  be  taken  as  true  further  than  they  are 
supported  by  the  facts  agreed. 

7.  The  defendant  having  had  full  notice  and  opportunity  to  be 
heard  before  the  jury  and  in  the  Superior  Court,  and  not  having 
lost  such  opportunity  by  any  mistake  as  to  his  rights,  and  no  error 
being  shown  in  any  stage  of  the  proceedings,  the  injunction  grant- 
ed upon  the  filing  of  the  bill  should  be  made  perpetual.  Winthrop 
V.  Farrar,  11  Allen  398. 

Decree  for  the  plaintiff. 

For  enforcement  of  the  law  by  judicial  process  through  the  issue  of 
the  mandamus  on  the  application  of  an  administrative  authority,  see 
People  V.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  104  N.  Y.  58;  Chicago  &c.  Ry.  Co.  v. 
Minnesota,  134  U.  S.  418,  supra.  See  also  Interstate  Commerce  Commis- 
sion V.  Brimson,  154  U.  S.  447,  an  instance  of  resort  to  the  courts  by  ad- 
ministrative authorities  to  secure  evidence. 
30 


466  THE   EXERCISE   OF   OPFICLA.L   AUTHOBITT. 


2.    Summary  Administrative  Proceedings. 

JOHN  DEN,  EX  DEM.  MURRAY  AND  KAYSER  V.  THE 
HOBOKEN  LAND  AND  IMPROVEMENT  COMPANY. 

Supreme  Court  of  the  United  States.    December,  1855. 
18  How.  (U.  S.)  272. 

Mr.  Justice  Curtis  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  the  certificate  of  a  division  of  opin- 
ion of  the  judges  of  the  Circuit  Court  of  the  United  States  for 
the  District  of  New  Jersey.  It  is  an  action  of  ejectment,  in  whicK 
both  parties  claim  title  under  Samuel  Swartout — the  plaintiffs  un- 
der the  levy  of  an  execution  on  the  10th  day  of  April,  1839,  and 
the  defendants,  under  a  sale  made  by  the  marshal  of  the  United 
States  for  the  district  of  New  Jersey,  on  the  Ist  day  of  June, 
1839 — ^by  virtue  of  what  is  denominated  a  distress  warrant,  issu- 
ing by  the  solicitor  of  the  treasury  under  the  act  of  Congress  of 
May  15,  1820. 

No  objection  has  been  taken  to  the  warrant  on  account  of  any 
defect  or  irregularity  in  the  proceedings  which  preceded  its  issue. 
It  is  not  denied  that  they  were  in  conformity  with  the  require- 
ments of  the  act  of  Congress. 

Its  validity  is  denied  by  the  plaintiffs,  upon  the  ground  that  so 
much  of  the  act  of  Congress  as  authorized  it  is  in  conflict  with  the 
Constitution  of  the  United  States. 

In  support  of  this  position,  the  plaintiff  relies  upon  that  part  of 
the  first  section  of  the  third  article  of  the  Constitution  which  re- 
quires the  judicial  power  of  the  United  States  to  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  Congress  may,  from 
time  to  time,  ordain  and  establish;  the  judges  whereof  shall  hold 
their  office  during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office.  Also,  on  the  second  section  of 
the  same  article,  which  declares  that  the  judicial  power  shall  ex- 
tend to  controversies  to  which  the  United  States  shall  be  a  party. 

It  must  be  admitted  that,  if  the  auditing  of  this  account,  and 
the  ascertainment  of  its  balance,  and  the  issuing  of  this  process 
was  an  exercise  of  the  judicial  power  of  the  United  States,  the  pro- 
ceeding was  void ;  for  the  officers  who  performed  these  aots  could 


DEN    V.     HOBOKEN    LAND    CO.  467 

exercise  no  part  of  that  judicial  power.  They  neither  constituted  a 
court  of  the  United  States,  nor  were  they,  or  either  of  them,  so  con- 
nected with  any  such  court  as  to  perform  even  any  of  the  minis- 
terial duties  which  arise  out  of  judicial  proceedings. 

The  question,  whether  these  acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry,  raised  by  the  further  objection  of  the  plaintiff,  that  the 
effect  of  the  proceedings  authorized  by  the  act  in  question  is  to 
deprive  the  party,  against  whom  the  warrant  is  issued,  of  his  lib- 
erty and  property,  "without  due  process  of  law;"  and,  therefore, 
is  in  conflict  with  the  fifth  article  of  the  amendments  of  the  Con- 
stitution. 

Taking  these  two  objections  together,  they  raise  the  question, 
whether,  under  the  Constitution  of  the  United  States,  a  collector 
of  the  customs,  from  whom  a  balance  of  account  has  been  found 
to  be  due,  by  accounting  officers  of  the  treasury,  designated  for 
that  purpose  by  law,  can  be  deprived  of  his  liberty  or  property,  in 
order  to  enforce  payment  of  that  balance,  without  the  exercise  of 
the  judicial  power  of  the  United  States,  and  yet  by  due  process  of 
law,  within  the  meaning  of  those  terms  in  the  Constitution ;  and  if 
so,  then,  secondly,  whether  the  warrant  in  question  was  such  due 
process  of  lawt 

That  the  warrant  now  in  question  is  legal  process,  is  not  denied. 
It  was  issued  in  conformity  with  an  act  of  Congress.  But  is  it 
"due  process  of  law?'*  The  Constitution  contains  no  description 
of  those  processes  which  it  was  intended  to  allow  or  forbid.  It  does 
not  even  declare  what  principles  are  to  be  applied  to  ascertain 
whether  it  be  due  process.  It  is  manifest  that  it  was  not  left  to 
the  legislative  power  to  enact  any  process  which  might  be  devised. 
The  article  is  a  restraint  on  the  legislative  as  well  as  on  the  execu- 
tive and  judicial  powers  of  the  government,  and  cannot  be  so  con- 
strued as  to  leave  Congress  free  to  make  any  process  "due  process 
of  law,"  by  its  mere  will.  To  what  principles,  then,  are  we  to  re- 
sort to  ascertain  whether  this  process,  enacted  by  Congress,  is  due 
process?  To  this  the  answer  must  be  twofold.  We  must  examine 
the  Constitution  itself  to  see  whether  this  process  be  in  conflict 
with  any  of  its  provisions.  If  not  found  to  be  so,  we  must  look  to 
those  settled  usages  and  modes  of  proceeding  existing  in  the  com- 
mon and  statute  law  of  England,  before  the  emigration  of  our 
ancestors,  and  which  are  shown  not  to  have  been  unsuited  to  their 
civil  and  political  condition  by  having  been  acted  upon  by  them 


468  THE    EXERCISE   OF    OFFICIAL   AUTHOBITT. 

after  the  settlement  of  this  country.  We  apprehend  there  has  been 
no  period,  since  the  establishment  of  the  English  monarchy,  when 
there  has  not  been,  by  the  law  of  the  land,  a  summary  method  for 
the  recovery  of  debts  due  to  the  crown,  and  especially  those  due 
from  receivers  of  the  revenues.  It  is  difficult  at  this  day,  to  trace 
with  precision  all  the  proceedings  had  for  these  purposes  in  the 
earliest  ages  of  the  common  law.  That  they  were  summary  and 
severe,  and  had  been  used  for  purposes  of  oppression,  is  inferable 
from  the  fact  that  one  chapter  of  Magna  Charta  treats  of  their 
restraint. 

This  brief  sketch  of  the  modes  of  proceeding  to  ascertain  and 
enforce  payment  of  balances  due  from  receivers  of  the  revenue  in 
England,  is  sufficient  to  show  that  the  methods  of  ascertaining  the 
existence  and  amount  of  such  debts,  and  compelling  their  pay- 
ment, have  varied  widely  from  the  usual  course  of  the  common  law 
on  other  subjects;  and  that,  as  respects  such  debts  due  from  such 
officers,  "the  law  of  the  land"  authorized  the  employment  of  audi- 
tors, and  an  inquisition  without  notice,  and  a  species  of  execution 
bearing  a  very  close  resemblance  to  what  is  termed  a  warrant  of 
distress  in  the  act  of  1820,  now  in  question. 

It  is  certain  that  this  diversity  in  *  *  the  law  of  the  land ' '  between 
public  defaulters  and  ordinary  debtors  was  understood  in  this 
country,  and  entered  into  the  legislation  of  the  colonies  and  prov- 
inces, and  more  especially  of  the  states,  after  the  Declaration  of 
Independence  and  before  the  formation  of  the  Constitution  of  the 
United  States.  Not  only  was  the  process  of  distress  in  nearly  or 
quite  universal  use  for  the  collection  of  taxes,  but  what  was  gen- 
erally termed  a  warrant  of  distress,  running  against  the  body, 
goods  and  chattels  of  defaulting  receivers  of  public  money,  was 
issued  to  some  public  officer,  to  whom  was  committed  the  power  to 
ascertain  the  amount  of  the  default ;  and  by  such  warrant  proceed 
to  collect  it. 

Congress,  from  an  early  period,  and  in  repeated  instances,  has 
legislated  in  a  similar  manner.  By  the  fifteenth  section  of  the  *  act 
to  lay  and  collect  a  direct  tax  within  the  United  States,"  of  July 
14,  1798,  the  supervisor  of  each  district  was  authorized  and  re- 
quired to  issue  a  warrant  of  distress  against  any  delinquent  col- 
lector and  his  sureties,  to  be  levied  upon  the  goods  and  chattels, 
and  for  want  thereof  upon  the  body  of  such  collector;  and,  fail- 
ing of  satisfaction  thereby,  upon  the  goods  and  chattels  of  the 


DEN    V.     HOBOKEN    LAND     CO.  4(»9 

sureties.  1  Stats,  at  Large,  602.  And  again,  in  1813,  (3  Stats,  at 
Large,  33,  §  28)  and  1815,  (3  Stats,  at  Large,  177,  §  33)  the  comp- 
troller of  the  treasury  was  empowered  to  issue  a  similar  warrant 
against  collectors  of  the  customs  and  their  sureties.  This  legis- 
lative construction  of  the  Constitution,  commencing  so  early  in 
the  government,  when  the  first  occasion  of  this  manner  of  proceed- 
ing arose,  continued  throughout  its  existence,  and  repeatedly  acted 
on  by  the  judiciary  and  the  executive,  is  entitled  to  no  inconsider- 
able weight  on  the  question  whether  the  proceeding  adopted  by  it 
was  ''due  process  of  law."  Prigg  v.  Pennsylvania,  16  Pet.  621; 
United  States  v.  Nourse,  9  Peters  8;  Randolph's  Case,  2  Brock. 
447;  Nourse' s  Case,  4  Cranch,  C.  C.  R.  151;  Bullock's  Case,  cited 
6  Peters  485,  note. 

Tested  by  the  common  and  statute  law  of  England  prior  to  the 
emigration  of  our  ancestors,  and  by  the  laws  of  many  of  the  states 
at  the  time  of  the  adoption  of  this  amendment,  the  proceedings 
authorized  by  the  act  of  1820  cannot  be  denied  to  be  due  process 
of  law,  when  applied  to  the  ascertainment  and  recovery  of  balances 
due  to  the  government  from  a  collector  of  customs,  unless  there 
exists  in  the  Constitution  some  other  provision  which  restrains 
Congress  from  authorizing  such  proceedings.  For,  though  "due 
process  of  law"  generally  implies  and  includes  actor,  reus,  judex, 
regular  allegations,  opportunity  to  answer,  and  a  trial  according 
to  some  settled  course  of  judicial  proceedings,  (2  Inst.  47,  50;  Hoke 
v.  Henderson,  4  Dev.  N.  C.  Rep.  15 ;  Taylor  v.  Porter,  4  Hill  146 ; 
Van  Zandt  v.  Waddel,  2  Yerger  260;  State  Bank  v.  Cooper,  Ibid. 
599;  Jones'  Heirs  v.  Perry,  10  Ibid.  59;  Greene  v.  Briggs,  1  Curtis 
311)  yet,  this  is  not  universally  true.  There  may  be,  and  we  have 
seen  that  there  are  cases,  under  the  law  of  England  after  Magna 
Charta,  and  as  it  was  brought  to  this  country  and  acted  on  here, 
in  which  process  in  its  nature  final,  issues  against  the  body,  lands 
and  goods  of  certain  public  debtors  without  such  trial;  and  this 
brings  us  to  the  question,  whether  those  provisions  of  the  Consti- 
tution which  relate  to  the  judicial  power  are  incompatible  with 
these  proceedings? 

That  the  auditing  of  the  accounts  of  a  receiver  of  public  moneys 
may  be,  in  an  enlarged  sense,  a  judicial  act,  must  be  admitted.  So 
all  those  administrative  duties  the  performance  of  which  involves 
an  inquiry  into  the  existence  of  facts  and  the  application  to  them 
of  rules  of  law.  In  this  sense  the  act  of  the  President  in  calling 
out  the  militia  under  the  act  of  1795,  12  Wheat.  19,  or  of  a  com- 
missioner who  makes  a  certificate  for  the  extradition  of  a  criminal, 


470  THE    EXERCISE    OF    OFFICIAL    AUTHORITY. 

under  a  treaty,  is  judicial.  But  it  is  not  sufficient  to  bring  such 
matters  under  the  judicial  power,  that  they  involve  the  exercise 
of  judgment  upon  law  and  fact.  United  States  v.  Ferreira,  13 
How.  40.  It  is  necessary  to  go  further  and  show  not  only  that  the 
adjustment  of  the  balances  due  from  accounting  officers  may  be, 
but  from  their  nature  must  be,  controversies  to  which  the  United 
States  is  a  party,  within  the  meaning  of  the  second  section  of  the 
third  article  of  the  Constitution.  We  do  not  doubt  the  power  of 
Congress  to  provide  by  law  that  such  a  question  shall  form  the  sub- 
ject-matter of  a  suit  in  which  the  judicial  power  can  be  exerted. 
The  act  of  1820  makes  such  a  provision  for  reviewing  the  decision 
of  accounting  officers  of  the  treasury.  But,  until  reviewed,  it  is 
final  and  binding ;  and  the  question  is  whether  its  subject-matter  is 
necessarily,  and  without  regard  to  the  consent  of  Congress,  a  judi- 
cial controversy.    And  we  are  of  opinion  it  is  not. 

Among  the  legislative  powers  of  Congress  are  the  powers  *  *  to  lay 
and  collect  taxes,  duties,  imposts  and  excises ;  to  pay  the  debts  and 
provide  for  the  common  defence  and  welfare  of  the  United  States; 
to  raise  and  support  armies;  to  provide  and  maintain  a  navj-;  to 
make  all  laws  which  may  be  necessary  and  proper  for  carrying  into 
execution  these  powers." 

The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into  effect,  in- 
cludes all  known  and  appropriate  means  of  effectually  collecting 
and  disbursing  the  revenue;  unless  some  such  means  shall  be  for- 
bidden in  some  other  part  of  the  Constitution.  The  power  has  not 
been  exhausted  by  the  receipt  of  the  money  by  the  collector.  Its 
purpose  is  to  raise  money  and  use  it  in  the  payment  of  the  debts  of 
the  government;  and,  whoever  may  have  possession  of  the  public 
money,  until  it  is  actually  disbursed,  the  power  to  use  those  known 
and  appropriate  means  to  secure  its  application  continues. 

As  we  have  already  shown,  the  means  provided  by  the  act  of 
1820  do  not  differ  in  principle  from  those  employed  in  England 
from  remote  antiquity — and  in  many  of  the  states  so  far  as  we 
know  without  objection — for  this  purpose,  at  the  time  the  Consti- 
tution was  formed.  It  may  be  added  that  probably  there  are  few 
governments  which  do  or  can  permit  their  claims  for  public  taxes, 
either  on  the  citizen  or  the  officer  employed  for  their  collection  or 
disbursement,  to  become  subjects  of  judicial  controversy,  accord- 
ing to  the  course  of  the  law  of  the  land.  Imperative  necessity  has 
forced  a  distinction  between  such  claims  and  all  others  which  has 


PEN    V.     HOBOKEN    LAND     CO.  iti 

sometimes  been  carried  out  by  siimmary  methods  of  proceedings, 
and  sometimes  by  systems  of  fines  and  penalties,  but  always  in 
some  way  observed  and  yielded  to. 

It  is  true  that  in  England  all  these  proceedings  were  had  in  what 
is  denominated  the  court  of  exchequer,  in  which  Lord  Coke  says 
(4  Inst.  115),  the  barons  are  the  sovereign  auditors  of  the  king- 
dom. But  the  barons  exercise  in  person  no  judicial  power  in  audit- 
ing accounts,  and  it  is  necessary  to  remember  that  the  exchequer 
includes  two  distinct  organizations,  one  of  which  has  charge  of 
the  revenues  of  the  crown,  and  the  other  has  long  been  in  fact,  and 
now  is  for  all  purposes,  one  of  the  judicial  courts  of  the  kingdom, 
whose  proceedings  are  and  have  been  as  distinct,  in  most  respects, 
from  those  of  the  revenue  side  of  the  exchequer,  as  the  proceed- 
ings of  the  circuit  court  of  this  district  are  from  those  of  the  treas- 
ury; and  it  would  be  an  unwarrantable  assumption  to  conclude 
that,  because  the  accounts  of  receivers  of  revenue  were  settled  in 
what  were  denominated  the  court  of  exchequer,  they  were  judicial 
controversies  between  the  king  and  his  subjects,  according  to  the 
ordinary  course  of  the  common  law  or  equity.  The  fact,  as  we 
have  already  seen,  was  otherwise. 


COMMONWEALTH  V.  BYRNE. 

Supreme  Court  of  Appeals  of  Virginia.    January,  1871, 
20  Gratt,  (Va.)  165. 

MoNCURE,  P.  The  petitioner  does  not  claim  his  discharge  from 
imprisonment  upon  the  ground  that  the  Legislature  had  not  a 
right  to  impose  the  tax,  for  the  non-payment  of  which  he  was 
arrested;  nor  upon  the  ground  that  he  did  not  use  and  enjoy  the 
privilege  on  which  the  tax  was  imposed ;  nor  upon  the  ground  that 
he  has  paid  the  tax,  or  any  part  of  it ;  nor  upon  the  ground  that, 
at  the  time  of  his  arrest,  he  had  sny  property  out  of  which  the  tax, 
or  any  part  of  it,  could  have  been  made  by  a  levy  thereon.  He  does 
not  even  show,  or  say,  that  he  has  not,  in  his  pocket,  or  at  his  com- 
mand, the  means  of  paying  the  tax.  But  he  places  his  defence 
upon  the  grounds :    First.    That  the  law  authorizing  an  arrest  and 


472  THE   EXERCISE   OF    OFFICIAL   AUTHOBITY. 

imprisonment  in  such  cases  is  unconstitutional  and  void,  because 
contrary  to  the  constitutions  both  of  the  United  States  and  of  this 
State. 

First,  as  to  the  constitutionality  of  the  law  under  which  the  peti- 
tioner was  arrested. 

That  law  is  the  63d  section  of  chapter  57  of  the  acts  of  the  Gen- 
eral Assembly,  passed  at  the  session  of  1866-67,  Sess.  Acts,  p.  849^ 
and  is  in  these  words : 

"63.  Within  ten  days  after  the  commissioner  of  the  revenue 
shall  have  granted  a  certificate  to  obtain  a  license,  he  shall  deliver 
to  the  sheriff  or  other  collector  of  the  taxes  on  such  licenses,  a  list 
of  all  such  certificates,  as  far  as  lie  may  have  progressed  with  the 
same ;  which  list  shall  be  the  guide  of  the  sheriff  or  collector  in  col- 
lecting the  taxes  imposed  by  law  on  such  licenses.  If  the  taxes  be 
not  paid,  the  sheriff  or  collector  shall  distrain,  immediately  upon 
the  receipt  of  such  list,  for  the  amount  with  which  any  person  may 
have  been  assessed;  and  he  may  sell,  upon  ten  days'  notice,  so 
much  of  such  person's  property,  subject  to  distress,  as  may  be 
necessary  to  pay  the  taxes  so  assessed,  and  the  costs  attending  its 
collection.  If  the  sheriff  or  collector  shall  be  unable  to  find  suffi- 
cient property  to  satisfy  the  taxes  so  assessed,  and  the  same  shall 
not  be  immediately  paid,  the  said  sheriff  or  collector  shall  arrest 
the  person  so  assessed,  and  hold  him  in  custody  until  the  payment 
is  made,  or  until  he  enter  into  bond,  with  sufficient  security,  in  a 
penalty  at  least  double  the  amount  of  the  taxes  so  assessed,  con- 
ditioned for  his  appearance  before  the  Circuit  Court  of  his  county 
or  corporation,  to  answer  such  action  of  debt,  indictment  or  infor-. 
mation  as  may  be  brought  against  him,  and  to  satisfy,  not  only  the 
fine  imposed,  but  to  pay  the  taxes  assessed;  and  it  shall  be  law- 
ful for  the  court,  upon  the  trial  of  such  action  of  debt,  indictment 
or  information,  to  render  judgment  upon  such  bond  for  the  fine 
imposed  and  the  taxes  which  may  be  assessed." 

Is  the  law  in  question  contrary  to  that  Bill  of  Rights  of  Vir- 
ginia which  declares  that  no  man  shall  "be  deprived  of  his  liberty^ 
except  by  the  law  of  the  land  or  the  judgment  of  his  peers?" 

That  a  man  may  be  deprived  of  his  liberty  by  the  law  of  the  land 
is  conceded  by  the  very  terms  of  the  provision  just  mentioned. 
That  he  cannot  "be  deprived  of  his  liberty  except  by  the  law  of 
the  land,"  necessarily  implies  that  he  may  be  deprived  of  it  by 
the  law  of  the  land ;  and  this  is  certainly  an  undeniable  fact. 


COMMONWEALTH    V.     BYRNE.  473 

"What,  then,  is  the  meaning  of  these  words,  **law  of  the  land," 
in  this  connection,  and  do  they  embrace  the  law  under  considera- 
tion?   These  are  the  questions  we  now  have  to  dispose  of. 

The  provision  of  our  bill  of  rights  in  which  these  words  are 
found,  is  similar  to  but  not  so  extensive  as  the  provision  of  the 
Constitution  of  the  United  States  before  referred  to ;  and  a  like 
provision  is  contained  in  the  constitution  of  every  State  in  the 
Union.  The  meaning  of  such  a  provision  has  been  the  subject  of 
consideration  and  decision  in  many  cases.  The  most  important  of 
them  all  seems  to  be  the  case  of  Murray's  Lessee,  &c.,  v.  Hoboken 
Land  &  Improvement  Co.,  18  How.  U.  S.  R.  272-286,  decided  by 
the  Supreme  Court  of  the  United  States  at  December  Term,  1855. 
Mr.  Justice  Curtis  delivered  the  opinion  of  the  court,  which  was 
unanimous.  In  that  case  it  was  held,  among  other  things,  that  a 
distress  warrant,  issued  by  the  solicitor  of  the  treasury,  under  the 
act  of  Congress  passed  on  the  15th  of  May,  1820  (3  Stats,  at 
Large,  592),  is  not  inconsistent  with  the  constitution  of  the  United 
States;  that  it  was  an  exercise  of  executive  and  not  of  judicial 
power,  according  to  the  meaning  of  those  words  in  the  Constitu- 
tion; and  that  it  is  not  inconsistent  with  that  part  of  the  Consti- 
tution which  prohibits  a  citizen  from  being  deprived  of  his  liberty 
or  property  without  due  process  of  law. 

In  Blackwell  on  Tax  Titles,  p.  176,  edition  of  1864,  chapter  9, 
the  writer  says:  "Where  the  person  against  whom  a  tax  has  been 
legally  assessed  neglects  or  refuses  to  pay  the  tax  voluntarily,  after 
a  notification  and  demand  made  by  the  collector  in  the  manner 
provided  by  law,  the  necessities  of  the  State  compel  a  resort  to 
coercive  means.  In  some  States  the  law  requires  the  body  of  the 
delinquent  to  be  arrested  and  imprisoned  in  satisfaction  of  the 
tax."  Bassett  v.  Porter,  4  Cush.  R.  487;  Daggett  v.  Everett,  19 
Maine  R.  373 ;  Rising  v.  Granger,  1  Mass.  R.  47 ;  Appleton  v.  Hop- 
kins, 5  Gray's  R.  530.  "In  other  States,  the  law  requires  the  tax 
to  be  collected  out  of  the  personal  estate  of  the  delinquent  if  a  suffi- 
ciency can  be  found  to  satisfy  it.  In  South  Carolina  the  statute 
thus  marshals  the  remedies:  1.  A  distress  of  the  personal  estate 
of  the  delinquent;  2.  The  sale  of  the  land;  3.  The  seizure  and  im- 
prisonment of  the  body.  (Kingman  v.  Glover,  3  Rich.  127.)  A 
violation  of  the  order  of  remedies  thus  prescribed  invariably  ren- 
ders the  act  of  the  officer  illegal.  It  is  the  policy  of  the  law  to  re- 
sort to  the  land  itself  only  when  all  other  remedies  fail  to  enforce 
a  satisfaction  of  the  tax.    The  person  or  personal  estate  of  the  de- 


474  THE    EXERCISE   OF    OFFICIAL    AUTHOEITT. 

linquent  is  regarded  as  the  primary,  the  land  the  dernier  resort 
The  tax  never  becomes  a  charge  upon  the  land  until  the  other  reme- 
dies have  been  exhausted."  **The  law  admits  of  no  substitution  or 
change  in  the  order  thus  established.  It  is  therefore  held  that  the 
land  of  the  delinquent  cannot  be  sold  in  those  States  which  author- 
ize imprisonment,  if  his  body  can  be  found,  nor  can  a  resort  be 
had  to  the  land,  in  States  where  the  personal  estate  is  regarded  as 
the  primary  fund,  as  long  as  a  sufficiency  of  personal  estate  can 
be  seized  and  sold  in  satisfaction  of  the  tax:  a  sale  of  the  land 
under  such  circumstances,  is  illegal  and  void." 

I  presume  no  one  will  contend,  and  I  do  not  understand  the 
learned  counsel  for  defendant  in  error  as  contending  in  this  case, 
that  the  law  in  question  is  unconstitutional  in  authorizing  the  sher- 
iff or  collector  to  distrain  the  property  of  the  person  assessed  with 
taxes  as  therein  mentioned,  if  they  be  not  paid.  The  necessity  of 
such  a  power,  and  its  constant  exercise  from  time  immemorial,  as 
we  have  seen,  places  its  constitutionality  on  an  impregnable  basis. 
But  it  seems  to  be  supposed  that  the  law  is  unconstitutional  in  au- 
thorizing the  sheriff  or  collector,  if  unable  to  find  sufficient  prop- 
erty to  satisfy  the  taxes  so  assessed,  and  the  same  shall  not  be 
immediately  paid,  to  arrest  the  person  so  assessed  and  hold  him  in 
custody  until  the  payment  is  made,  or  until  he  enter  into  bond  with 
sufficient  security,  as  therein  mentioned.  Why  should  this  power 
to  arrest  the  person  so  assessed  make  the  law  unconstitutional  any 
more  than  the  power  to  distrain  his  goods?  The  ground  of  the 
objection  is  that  a  person  cannot  be  deprived  of  his  liberty  except 
by  the  law  of  the  land.  But  a  person  cannot  be  deprived  of  his 
property,  any  more  than  his  liberty,  except  by  the  law  of  the  land ; 
and  yet  it  is  well  settled,  and  must  be  admitted,  that  a  person's 
property  may  be  seized  for  non-payment  of  his  taxes,  upon  the 
mere  assessment  of  the  commissioner  of  the  revenue,  and  without 
any  judgment  of  any  court  against  him.  Why  may  not  his  person 
be  arrested  for  the  same  cause,  when  the  law  expressly  authorizes 
such  an  arrest?  We  have  seen  that  the  authorities  place  the  seiz- 
ing of  the  property,  and  arresting  of  the  person  of  the  tax  debtor, 
on  the  same  footing  in  regard  to  the  constitutional  question  we  are 
now  considering;  and  so  they  undoubtedly  are.  The  power  to 
arrest  the  person  may  not  be  so  often  given  by  tax  laws  as  the  power 
to  distrain  property;  but  a  power  to  arrest  the  person  is  often 
given  by  such  laws,  and  is  sometimes  necessary  to  make  them  effi- 
cient; and  whenever  it  is  necessary,  the  Legislature,  which  is 
charged  with  the  important  duty  of  raising  a  revenue  for  the  sup- 


COMMONWEALTH    V.    BYRNE.  475 

port  of  the  government,  may  constitutionally  confer  such  a  power. 
It  is  not  contrary,  as  has  been  shown,  to  the  provision  of  the  Bill 
of  Eights  before  referred  to,  nor  is  it  contrary  to  any  other  pro- 
vision of  the  Constitution.  There  is  no  provision  in  our  Constitu- 
tion, as  there  is  in  some  of  the  other  State  Constitutions,  which 
forbids  imprisonment  for  debt 

But  it  is  objected  that  imprisonment  might  be  perpetual  under 
this  law,  as  it  makes  no  provision  for  the  discharge  of  the  prisoner, 
even  though  he  be  insolvent. 

If  this  be  true,  it  may  show  the  law  to  be  harsh  in  its  operation, 
but  does  not  therefore  show  it  to  be  unconstitutional.  It  may  be  a 
bad  exercise  of  legislative  discretion,  but  not  an  excess  of  legisla- 
tive power.  The  courts  may  control  the  latter,  but  have  nothing 
to  do  with  the  former. 

But  it  is  said  that  the  law  is  harsh,  and  indeed  unconstitutional, 
in  requiring  the  person  arrested  to  give  bond,  &c.,  for  his  appear- 
ance before  the  Circuit  Court  of  his  county  or  corporation,  to 
answer  such  action  of  debt,  indictment  or  information,  as  may  be 
brought  against  him,  and  to  satisfy,  not  only  the  fine  imposed,  but 
the  taxes  assessed. 

The  law  does  not  require  him  to  give  such  a  bond.  He  may  dis- 
charge himself  from  custody  by  payment  of  the  tax.  What  is  said 
about  the  bond  is  for  his  benefit.  He  may  give  the  bond,  and 
obtain  his  discharge  in  that  way,  if  he  cannot,  or  does  not,  choose 
to  pay  the  money.  There  is  nothing  unreasonable  in  the  condition 
of  the  bond  which  he  is  thus  authorized  to  give.  He  has  incurred 
a  fine,  for  which  an  action  of  debt,  or  an  indictment,  or  an  infor- 
mation lies,  and  he  also  owes  the  taxes  assessed.  The  condition  of 
the  bond  is  not  to  pay  the  fine  absolutely,  but  to  answer  to  such 
action  of  debt,  indictment  or  information  as  may  brought 
against  him,  and  to  satisfy  the  fine  imposed ;  that  is,  the  fine  which 
may  be  imposed  on  the  trial  of  such  action  of  debt,  indictment  or* 
information ;  and  also  to  pay  the  taxes  assessed. 

I  therefore  think  the  law  under  which  the  petitioner  was  arrested 
is  constitutional. 


Even  real  property  may  be  sold  by  summary  administrative  pro- 
ceedings in  order  to  collect  a  tax,  when  provided  by  law.  Springer  v. 
United  States,  102  U.  S.  586. 


476  THE   EXERCISE   OF   OFFICIAL   AUTHOBITT. 


BERGEN  V.  CLARKSON. 

Supreme  Court  of  New  Jersey.    November,  1821. 
6  N.  J.  L.  428. 

This  was  an  action  of  trespass  brought  by  Bergen  against  Clark- 
son 

KiNSEY,  C.  J.,  delivered  the  opinion  of  the  court.  In  this  case 
two  questions  occur  for  our  consideration 

2.  Whether,  supposing  the  tax  to  have  been  legally  voted  and 
assessed,  the  warrant  of  distress  and  sale,  under  which  the  alleged 
trespass  was  committed,  was  a  lawful  process,  or  affords  a  suflS- 
cient  and  legal  justification  of  the  officer? 

2.  Being  of  this  opinion  upon  the  first  point  of  the  case,  as  to 
the  illegality  of  the  tax  itself,  it  might  be  unnecessary  to  consider 
the  propriety  of  a  warrant  of  distress  and  sale,  which  was  the  sec- 
ond question  proposed.  In  a  matter,  however,  of  so  much  moment, 
we  conceive  it  our  duty  to  pave  the  way,  at  least,  for  a  final  settle- 
ment of  this  law,  in  order  to  prevent  the  expense  and  trouble  which 
must  be  incurred  in  obtaining  a  decision  upon  it  in  another  case. 

If  the  tax  in  question  had  been  legally  imposed  we  are  clearly 
of  opinion  that,  by  the  terms  of  spirit  of  the  charter,  the  corpora 
tion  are  not  authorized  to  collect  it  by  a  warrant  of  distress  and 
sale,  upon  the  return  and  oath  of  the  collector,  that  the  person 
assessed  is  a  delinquent. 

"When  a  tax  is  assessed,  if  it  has  been  done  in  a  legal  manner, 
the  quota  apportioned  upon  each  individual  becomes  a  debt,  and, 
if  not  paid,  must  be  recovered  by  the  corporation  in  due  course 
of  law;  unless  where  the  charter  authorizes  proceedings  of  a  more 
summary  kind;  or  unless  a  corporation  is  empowered  by  the  com- 
mon law  tc  enact  a  by-law  prescribing  the  mode  in  which  their 
debts  may  be  collected. 

With  regard  to  the  charter  by  which  the  city  of  New  Brunswick 
holds  its  corporate  existence,  it  gives  no  such  power,  as  is  contended 
for,  in  general  cases.  It  expressly  authorizes  a  warrant  of  dis- 
tress and  sale  in  the  case  of  fines  and  amercements,  which  being 
particularly  specified,  would  seem,  if  any  such  argument  were 
necessary,  to  exclude  this  mode  of  proceeding  in  all  other  cases. 

By  the  common  law,  we  consider  it  as  clear,  that  corporations 
cannot  make   a  by-law  to  enforce  the  payment   of   taxes,    fines. 


CITY    OF    ORLANDO    V.    PRAGG.  477 

amercements  or  forfeitures,  by  warrant  to  distrain  and  sell  the 
goods  of  the  party  who  may  have  omitted  to  discharge  his  legal 
dues. 

It  is  no  answer  to  this  to  say,  that  this  is  the  mode  in  which  the 
state  taxes  are  collected ;  because  there  is  an  express  law  authoriz- 
ing and  directing  it,  and  there  can  be  no  question  as  to  the  author- 
ity of  the  legislature  to  enact  such  a  law.  From  the  powers  which 
are  vested  in  the  supreme  legislative  body  of  the  country,  no  in- 
ference can  be  drawn  to  prove  the  powers  of  inferior  corporations. 
A  body  of  this  kind  can  make  no  law  which  contravenes  the  com- 
mon or  statute  law  of  the  community,  which  tends  to  despoil  the 
citizen  of  his  birth  right,  unless  such  power  is  actually  and  ex- 
pressly given  them  by  charter.  The  act  of  incorporation  does  not, 
in  the  present  case,  vest  such  an  authority ;  on  the  contrary,  it  ex- 
pressly provides,  in  the  sixth  section,  that  their  ordinances  "shall 
not  be  repugnant  to  the  laws  of  New  Jersey. ' ' 

Upon  the  whole,  we  are  of  opinion 

2.  That  the  process  issued  by  the  director  was  void,  and  no  jus- 
tification to  the  officer;  he  must  be  answerable  to  the  party  in- 
jured, and  look  for  indemnity  to  those  under  whose  usurped 

authority  he  has  acted. 

Let  the  judgment  be  aljirmed. 


THE  CITY  OF  ORLANDO  V.  PRAGG. 

Supreme  Court  of  Florida.    January,  1893. 
31  Florida  111. 

Upon  appeal  from  the  Circuit  Court  of  Orange  County. 
Taylor,  J.    John  M.  Pragg,  the  appellee,  sued  the  city  of  Or- 
lando, the  appellant,  in  trespass. 

The  defendant  municipal  corporation  demurred 

This  demurrer  being  overruled,  the  case  went  to  trial  upon  a  plea 
of  the  general  issue,  and  resulted  in  a  verdict  and  judgment  for 
the  plaintiff  in  the  sum  of  $300,  and  from  this  judgment  an  appeal 
is  taken  here. 

Two  of  the  defendant's  grounds  of  its  motion  for  a  new  trial. 


478  THE    EXERCISE   OF    OFFICIAL    AUTHORITY. 

that  was  overruled,  were,  that  the  verdict  of  the  jury  was  contrary 
to  evidence,  and  contrary  to  the  law  of  the  case. 

The  uncontradicted  proof  of  the  defendant  shows  that  the  plain- 
tiff's property  removed  was  in  fact  a  nuisance;  that  he  was  given 
fair  warning  first  to  rectify  it;  then  that  the  county  board  of 
health,  having  full  power  by  law  to  abate  nuisances  and  to  appoint 
such  agencies  as  it  saw  proper,  had  declared  said  property  to  be 
a  nuisance  and  ordered  the  defendant  to  abate  it.  The  plaintiff  was 
again  given  fair  notice  of  this  action,  and  reasonable  time  to  remove 
the  offending  property  himself.  Failing  to  do  so,  the  city,  having 
full  power  also  by  law  to  abate  nuisances,  through  its  marshal, 
without  unnecessary  damage,  itself  removes  the  cause  of  the  nui- 
sance ;  and  the  plaintiff  sits  listlessly  by  and  makes  no  effort  to  look 
after  or  care  for  his  property.  Under  these  circumstances,  if  true, 
and  they  were  not  denied,  the  defendant  city  was  not  liable  in  law 
for  any  damages  that  necessarily  resulted  to  the  plaintiff  in  the 
removal  or  abatement  of  property  that  was  in  fact  a  nuisance. 
The  verdict  of  the  jury,  therefore,  was  clearly  contrary  to  the  evi- 
dence and  to  the  law  of  the  case,  and  the  defendant's  motion  for  a 
new  trial  should  have  been  granted. 

The  power  conferred,  in  general  terms,  to  prevent  and  abate 
nuisances,  cannot  be  taken  to  authorize  the  condemnation  and  de- 
struction of  that  as  a  nuisance  which,  in  its  nature,  situation  or 
use,  is  not  such  in  fact.  And  if  the  city,  acting  under  the  general 
power,  abate  that  as  a  nuisance  that  is  not  such  in  fact,  it  does  so 
at  its  peril,  and  is  liable  for  the  damage  done,  if  it  turns  out  on 
proof  that  it  has  made  a  mistake.  1  Dillon  on  Municipal  Corpora- 
tions (4th  ed.).  Section  374;  Yates  v.  Milwaukee,  10  Wall.  497; 
Everett  v.  Council  Bluffs,  46  la.  66;  Wood's  Law  of  Nuisances, 
Section  744. 

On  the  other  hand,  if  the  city  under  this  general  power,  in  pro- 
ceeding against  that  as  a  nuisance  which  is  in  fact  such  because  of 
its  nature,  situation,  or  use,  it  is  then  under  the  obligation  to  ex- 
ercise the  power  of  abatement  in  a  reasonable  manner  so  as  to  do 
the  least  injury  to  private  rights.  And  if,  where  the  fact  of  nui- 
sance is  clear,  it  exercises  the  power  of  abatement  in  an  unreason- 
able, careless  or  negligent  manner  so  as  to  produce  unnecessary 
damage  to  private  rights,  it  will  be  liable  for  the  damage  caused  by 
such  negligence.  State  v.  Newark,  5  Vroom  (34  N.  J.  L.)  264;  1 
Dillon  on  Munic.  Corp.,  Sec.  378 ;  Larson  v.  Furlong,  50  Wis.  681 ; 
Wood's  Law  of  Nuisances,  Sec.  741. 


LAWTON    V.     STEELE.  479 

But  if,  as  is  shown  by  the  uncontradicted  proofs  in  this  case,  the 
fact  of  nuisance  is  clear,  and  the  owner  thereof  is  notified  that  he 
must  remove  same,  and  is  given  a  reasonable  time  in  which  to 
do  so,  and  he  fails,  and  the  city,  acting  under  its  general  power,  or 
as  the  agent  of  the  county  board  of  health  who  have  the  same 
power,  then  remove  or  abate  the  same  in  such  manner  as  not  to 
bring  about  any  unnecessary  damage  to  the  owner,  then  under  the 
law  the  city  is  not  liable. 

The  judgment  appealed  from  is  reversed,  and  a  new  trial  or- 
dered. 

See  also  Fields  v.  Stokely,  99  Pa.  St  306,  infra,  which  would  seem 
to  hold  that  summary  administrative  proceedings  for  the  abatement  of 
a  nuisance  are  proper,  even  in  the  absence  of  a  statute  providing  for 
them. 


LAWTON  V.  STEELE. 

Court  of  Appeals  of  New  York.    February,  1890. 
119  N.  Y,  226. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  upon  an  order 
made  February  12,  1889,  which  reversed  a  judgment  in  favor  of 
plaintiffs  entered  upon  a  verdict,  and  ordered  a  new  trial. 

This  action  was  brought  to  recover  the  value  of  sixteen  hoop  or 
fike  nets  belonging  to  the  plaintiffs,  which  were  destroyed  by  de- 
fendant; twelve  of  the  nets  were  found  by  defendant  set  in  the 
waters  of  Black  River  bay,  an  inlet  of  Lake  Ontario,  for  the  pur- 
pose of  catching  fish,  the  four  others  were  on  shore.  Defendant 
was  a  state  fish  and  game  protector  and  justified  as  such ;  the  pro- 
vision of  the  statute  under  which  he  justified  is  set  forth  in  the 
opinion. 

Andrews,  J. 

The  point  of  difference  between  the  trial  court  and  the  General 
Term  relates  to  the  constitutionality  of  the  second  section  of  the  act 
of  1880,  as  amended  in  1883.  That  section  is  as  follows:  **Sec.  2. 
Any  net  found,  or  other  means  or  device  for  taking  or  capturing 
fish,  or  whereby  they  may  be  taken  or  captured,  set,  put,  floated, 
had,  found  or  maintained   in   or   upon  any  of  the  waters  of  this 


480  THE    EXEBCI8E   OF    OFFICIAL   AUTHOBITY. 

State,  or  upon  the  shores  or  islands  in  any  waters  of  this  State,  in 
violation  of  any  existing  or  hereafter  enacted  statutes  or  laws,  for 
the  protection  of  fish,  is  hereby  declared  to  be,  and  is  a  public  nui- 
sance, and  may  be  abated  and  summarily  destroyed  by  any  person ; 
and  it  shall  be  the  duty  of  each  and  every  (game  and  fish)  pro- 
tector aforesaid  and  of  every  game  constable,  to  seize  and  remove 

and  destroy  the  same, and  no  action  for  damages 

shall  be  maintained  against  any  person  for  or  on  account  of  any 
such  seizure  or  destruction."  The  defendant  justified  the  seizure 
and  destruction  of  nets  of  the  plaintiff,  as  a  game  protector,  under 
this  statute,  and  established  the  justification,  if  the  legislature  had 
the  constitutional  power  to  authorize  the  summary  remedy  pro- 
vided by  the  section  in  question.  The  trial  judge  held  the  act  in 
this  respect  to  be  unconstitutional,  and  ordered  judgment  in  favor 
of  the  plaintiffs  for  the  value  of  the  nets.  The  General  Term  sus- 
tained the  constitutionality  of  the  statute  and  reversed  the  judg- 
ment. We  concur  with  the  General  Term  for  reasons  which  will 
now  be  stated. 

The  legislative  power  of  the  State  which  by  the  Constitution  Ls 
vested  in  the  senate  and  assembly  (§  1,  art.  3),  covers  every  sub- 
ject which  in  the  distribution  of  the  powers  of  government  between 
the  legislative,  executive,  and  judicial  departments,  belongs  by 
practice  or  usage,  in  England  or  in  this  country,  to  the  legislative 
department,  except  in  so  far  as  such  power  has  been  withheld  or 
limited  by  the  Constitution  itself,  and  subject  also  to  such  restric- 
tions on  its  exercise  as  may  be  found  in  the  Constitution  of  the 
United  States. 

The  act  in  question  declares  that  nets  set  in  certain  waters  are 
public  nuisances,  and  authorizes  their  summary  destruction.  The 
statute  declares  and  defines  a  new  species  of  public  nuisance,  not 
known  to  the  common  law,  nor  declared  to  be  such  by  any  prior 
statute.  But  we  know  of  no  limitation  of  legislative  power  which 
precludes  the  legislature  from  enlarging  the  category  of  public 
nuisances,  or  from  declaring  places  or  property  used  to  the  detri- 
ment of  public  interests  or  to  the  injury  of  the  health,  morals  or 
welfare  of  the  community,  public  nuisances,  although  not  such  at 
common  law.  There  are,  of  course,  limitations  upon  the  exercise 
of  this  power.  The  legislature  cannot  use  it  as  a  cover  for  with- 
drawing property  from  the  protection  of  the  law,  or  arbitrarily, 
where  no  public  right  or  interest  is  involved,  declare  property  to 
be  a  nuisance  for  the  purpose  of  devoting  it  to  destruction.    If  the 


LAWTON    V.     STEELE.  481 

court  can  judicially  see  that  the  statute  is  a  mere  evasion,  or  was 
framed  for  the  purpose  of  individual  oppression,  it  will  set  it  aside 
as  unconstitutional,  but  not  otherwise.  In  re  Jacobs,  98  N.  Y.  98 ; 
Mugler  v.  Kansas,  123  U.  S.  661. 

The  legislative  power  to  regulate  fishing  in  public  waters  has 
been  exercised  from  the  earliest  period  of  the  common  law.     .     .     . 

The  more  dilBBcult  question  arises  upon  the  provision  in  the  sec- 
ond section  of  the  act  of  1883,  which  authorizes  any  person,  and 
makes  it  the  duty  of  the  game  protector,  to  abate  the  nuisance 
caused  by  nets  set  in  violation  of  law,  by  their  summary  destruc- 
tion. It  is  insisted  that  the  destruction  of  nets  by  an  individual, 
or  by  an  executive  officer  so  authorized,  without  any  judicial  pro- 
ceeding, is  a  deprivation  of  the  owner  of  the  nets  of  his  property, 
without  due  process  of  law,  in  contravention  of  the  Constitution. 
The  right  of  summary  abatement  of  nuisances  without  judicial 
process  or  proceeding,  was  an  established  principle  of  the  common 
law  long  before  the  adoption  of  our  Constitution,  and  it  has  never 
been  supposed  that  this  common  law  principle  was  abrogated  by 
the  provision  for  the  protection  of  life,  liberty  and  property  in  our 
State  Constitution,  although  the  exercise  of  the  right  might  result 
in  the  destruction  of  property. 

Quarantine  and  health  laws  have  been  enacted  from  time  to  time 
from  the  organization  of  our  State  government,  authorizing  the 
summary  destruction  of  infected  cargo,  clothing  or  other  articles, 
by  officers  designated,  and  no  doubt  has  been  suggested  as  to  their 
constitutionality. 

Van  Warmer  v.  Mayor,  etc.,  15  Wend.  263,  sustained  the  right  of 
a  municipal  corporation  to  dig  down  a  lot  in  the  city,  to  abate  a 
nuisance,  although  in  the  process  of  abatement  buildings  thereon 
were  pulled  down.  In  Meeker  v.  Van  Renssalaer,  15  Wend.  397, 
the  court  justified  the  act  of  the  defendant  as  an  individual  citizen 
in  tearing  down  a  filthy  tenement  house  which  was  a  nuisance,  to 
prevent  the  spread  of  the  Asiatic  cholera. 

These  authorities  sufficiently  establish  the  proposition  that  the 
constitutional  guarantee  does  not  take  away  the  common  law  right 
of  abatement  of  nuisances  by  summary  proceedings,  without  ju- 
dicial trial  or  process.  But  in  the  process  of  abating  a  nuisance 
there  are  limitations  both  in  respect  of  the  agencies  which  may  be 
employed,  and  as  to  what  may  be  done  in  execution  of  the  remedy. 
31 


482  THE    EXERCISE    OF    OFFICIAL    AUTHOBITY. 

The  general  proposition  has  been  asserted  in  text-books  and  re- 
peated in  judicial  opinions,  that  any  person  may  abate  a  public 
nuisance.  But  the  best  considered  authorities  in  this  country  and 
England  now  hold  that  a  public  nuisance  can  only  be  abated  by  au 
individual  where  it  obstructs  his  private  right,  or  interferes  at  the 
time  with  his  enjoyment  of  a  right  common  to  many,  as  the  right 
of  passage  upon  the  public  highway,  and  he  thereby  sustains  a  spe- 
cial injury.  Brown  v.  Perkins,  12  Gray  89 ;  Mayor  of  Colchester 
V.  Brooke,  7  A.  &  El.  339 ;  Dimes  v.  Petley,  15  id.  276 ;  Fort  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  44 ;  Harrower  v.  Ritson,  37  Barb.  3G1. 
The  public  remedy  is  ordinarily  by  indictment  for  the  punish- 
ment of  the  offender,  wherein  on  judgment  for  conviction  the 
removal  or  destruction  of  the  thing  constituting  the  nuisance,  if 
physical  and  tangible,  may  be  adjudged,  or  by  bill  in  equity  filed 
in  behalf  of  the  people.  But  the  remedy  by  judicial  prosecution, 
in  rem  or  in  personam,  is  not,  we  conceive,  exclusive,  where  the 
statute  in  a  particular  case  gives  a  remedy  by  summary  abatement, 
and  the  remedy  is  appropriate  to  the  object  to  be  accomplished. 
There  are  nuisances  arising  from  conduct,  which  can  only  be 
abated  by  the  arrest  and  punishment  of  the  offender,  and  in  such 
cases  it  is  obvious  that  the  legislature  could  not  directly  direct  the 
sheriff  or  other  oflficer  to  seize  and  flog  or  imprison  the  culprit. 
The  infliction  of  punishment  for  crime  is  the  prerogative  of  the 
court  and  cannot  be  usurped  by  the  legislature.  The  legislature 
can  only  define  the  offense  and  prescribe  the  measure  of  punish- 
ment, where  guilt  shall  have  been  judicially  ascertained.  But  as 
the  legislature  may  declare  nuisances,  it  may  also,  where  the  nui- 
sance is  physical  and  tangible,  direct  its  summary  abatement  by 
executive  officers,  without  the  intervention  of  judicial  proceedings 
in  cases  analogous  to  those  where  the  remedy  by  summary  abate- 
ment existed  at  common  law. 

But  the  remedy  by  summary  abatement  cannot  be  extended  be- 
yond the  purpose  implied  in  the  words,  and  must  be  confined  to 
doing  what  is  necessary  to  accomplish  it.  And  here  lies,  we  think, 
the  stress  of  the  question  now  presented.  It  cannot  be  denied  that 
in  many  cases  a  nuisance  can  only  be  abated  by  the  destruction  of 
the  property  in  which  it  consists.  The  cases  of  infected  cargo  or 
clothing  and  of  impure  and  unwholesome  food  are  plainly  of  this 
description.  They  are  nuisances  per  se  and  their  abatement  is 
their  destruction.  So,  also,  there  can  be  little  doubt,  as  we  con- 
ceive, that  obscene  books,  or  pictures,  or  implements  only  capable 


LAWTON    V.     STEELE.  483 

of  an  illegal  use,  may  be  destroyed  as  a  part  of  the  process  of  abat- 
ing the  nuisance  they  create,  if  so  directed  by  statute.  The  keep- 
ing of  a  bawdy  house,  or  a  house  for  the  resort  of  lewd  and  dis- 
solute people,  is  a  nuisance  at  common  law.  But  the  tearing  down 
of  the  building  so  kept  would  not  be  justified  as  the  exercise  of 
the  power  of  summary  abatement,  and  it  would  add  nothing,  we 
think,  to  the  justification  that  a  statute  was  produced  authorizing 
the  destruction  of  the  building  summarily  as  a  part  of  the  remedy. 
The  nuisance  consists  in  the  case  supposed  in  the  conduct  of  the 
owner  or  occupants  of  the  house,  in  using  or  allowing  it  to  be  used 
for  the  immoral  purpose,  and  the  remedy  would  be  to  stop  the  use. 
This  would  be  the  only  mode  of  abatement  in  such  case  known  to 
the  common  law,  and  the  destruction  of  the  building  for  this  pur- 
pose would  have  no  sanction  in  common  law  or  precedent.  See 
Babcock  v.  City  of  Buffalo,  56  N.  Y.  268;  Barclay  v.  Common- 
wealth, 25  Penn.  St.  503 ;  Ely  v.  Board  of  Supervisors,  36  N.  Y. 
297. 

But  where  a  public  nuisance  consists  in  the  location  or  use  of 
tangible  personal  property,  so  as  to  interfere  with  or  obstruct  a 
public  right  or  regulation,  as  in  the  case  of  the  float  in  the  Albany 
basin  (9  Wend.  571),  or  the  nets  in  the  present  case,  the  legisla- 
ture may,  we  think,  authorize  its  summary  abatement  by  execu- 
tive agencies  without  resort  to  judicial  proceedings,  and  any  injury 
or  destruction  of  the  property  necessarily  incident  to  the  exercise 
of  the  summary  jurisdiction,  interferes  with  no  legal  right  of  the 
owner.  But  the  legislature  cannot  go  further.  It  cannot  decree 
the  destruction  or  forfeiture  of  property  used  so  as  to  constitute  a 
nuisance  as  a  punishment  of  the  wrong,  nor  even,  we  think,  to  pre- 
vent a  future  illegal  use  of  the  property,  it  not  being  a  nuisance 
per  se,  and  appoint  officers  to  execute  its  mandate.  The  plain 
reason  is  that  due  process  of  law  requires  a  hearing  and  trial  be- 
fore punishment,  or  before  forfeiture  of  property  can  be  adjudged 
for  the  owner's  misconduct.  Such  legislation  would  be  a  plain 
usurpation  by  the  legislature  of  judicial  powers,  and  under  the 
guise  of  exercising  the  power  of  summary  abatement  of  nuisances, 
the  legislature  cannot  take  into  its  own  hands  the  enforcement  of 
the  criminal  or  quasi  criminal  law.  See  opinion  of  Shaw,  Ch.  J.,  in 
Fisher  v.  McGirr,  supra,  and  in  Brown  v.  Perkins,  12  Gray  89. 

The  inquiry  in  the  present  case  comes  to  this:  Whether  the 
destruction  of  the  nets  set  in  violation  of  law,  authorized  and  re- 
quired by  the  act  of  1883,  is  simply  a  proper,  reasonable  and  neces- 
sary regulation  for  the  abatement  of  the  nuisance,  or  transcends 


484  THE    EXERCISE   OF   OFFICIAL   AUTHORITY. 

that  purpose  and  is  to  be  regarded  as  the  imposition  and  infliction 
of  a  forfeiture  of  the  owner's  right  of  property  in  the  nets,  in  the 
nature  of  a  punishment.  We  regard  the  case  as  very  near  the 
border  line,  but  we  think  the  legislation  may  be  fairly  sustained  on 
the  ground  that  the  destruction  of  the  nets  so  placed  is  a  reason- 
able incident  of  the  power  to  abate  the  nuisance.  The  owner  of 
the  nets  is  deprived  of  his  property,  but  not  as  the  direct  object  of 
the  law,  but  as  an  incident  to  the  abatement  of  the  nuisance. 
"Where  a  private  person  is  authorized  to  abate  a  public  nuisance, 
as  in  case  of  a  house  built  in  a  highway,  or  a  gate  across  it,  which 
obstructs  and  prevents  his  passage  thereon,  it  was  long  ago  held 
that  he  was  not  required  to  observe  particular  care  in  abating  the 
nuisance,  and  that  although  the  gate  might  have  been  opened  with- 
out cutting  it  down,  yet  the  cutting  down  would  be  lawful.  Lodie 
V.  Arnold,  2  Salk,  458,  and  cases  cited.  But  the  general  rule  un- 
doubtedly is  that  the  abatement  must  be  limited  by  necessity,  and 
no  wanton  or  unnecessary  injury  must  be  committed.  3  Bl.  6,  note. 
It  is  conceivable  that  nets  illegally  set  could,  with  the  use  of  care, 
be  removed  without  destroying  them.  But  in  view  of  their  posi- 
tion, the  difficulty  attending  their  removal,  the  liability  to  injury 
in  the  process,  their  comparatively  small  value,  we  think  the  legis- 
lature could  adjudge  their  destruction  as  a  reasonable  means  of 
abating  the  nuisance. 

These  views  lead  to  an  affirmance  of  the  order  of  the  General 
Term. 

It  is  insisted  that  the  provision  of  the  act  of  1883  authorizes  the 
destruction  of  nets  found  on  the  land,  on  shores  or  islands  adjacent 
to  waters,  where  taking  of  fish  hy  nets  is  prohibited,  and  that  this 
part  of  the  statute  is  in  any  view  unconstitutional.  Assuming  this 
premise  it  is  claimed  that  the  whole  section  must  fall,  as  the  statute, 
if  unconstitutional  as  to  one  provision,  is  unconstitutional  as  a 
whole.  This  is  not,  we  think,  the  general  rule  of  law,  where  pro- 
visions of  a  statute  are  separable,  one  of  which  only  is  void.  On 
the  contrary  the  general  rule  requires  the  court  to  sustain  the  valid 
provisions,  while  rejecting  the  others.  Where  the  void  matter  is  so 
blended  with  the  good  that  they  cannot  be  separated,  or  where  the 
court  can  judicially  see  that  the  legislature  only  intended  the 
statute  to  be  enforced  in  its  entirety,  and  that  by  rejecting  part  the 
general  purpose  of  the  statute  would  be  defeated,  the  court,  if  com- 
pelled to  defeat  the  main  purpose  of  the  statute,  will  not  strive  to 
save  any  part.    See  Fisher  v.  McGirr,  supra. 


LAWTON    V.    STEELE.  485 

The  order  granting  a  new  trial  should  be  affirmed  and  judgment 
absolute  ordered  for  the  defendant  on  the  stipulation,  with  costs. 
All  concur,  O'Brien,  J.,  not  sitting. 
Order  affirmed  and  judgment  accordingly. 


LAWTON  V.  STEELE. 

Supreme  Court  of  the  United  States.    March,  1894. 
152  U.  S.  133. 

Mr.  Justice  Brown,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

It  is  not  easy  to  draw  the  line  between  cases  where  the  property 
illegally  used  may  be  destroyed  summarily  and  where  judicial  pro- 
ceedings are  necessary  for  its  condemnation.  If  the  property  were 
of  great  value,  as,  for  instance,  if  it  were  a  vessel  employed  for 
smuggling  or  other  illegal  purposes,  it  would  be  putting  a  danger- 
ous power  in  the  hands  of  a  custom  officer  to  permit  him  to  sell  or 
destroy  it  as  a  public  nuisance,  and  the  owner  would  have  good 
reason  to  complain  of  such  act,  as  depriving  him  of  his  property 
without  due  process  of  law.  But  where  the  property  is  of  trifling 
value,  and  its  destruction  is  necessary  to  effect  the  object  of  a  cer- 
tain statute,  we  think  it  is  within  the  power  of  the  legislature  to 
order  its  summary  abatement.  For  instance,  if  the  legislature 
should  prohibit  the  killing  of  fish  by  explosive  shells,  and  should 
order  the  cartridges  so  used  to  be  destroyed,  it  would  seem  like 
belittling  the  dignity  of  the  judiciary  to  require  such  destruction 
to  be  preceded  by  a  solemn  condemnation  in  a  court  of  justice.  The 
same  remark  might  be  made  of  the  cards,  chips,  and  dice  of  a 
gambling  room. 

The  value  of  the  nets  in  question  was  but  $15  apiece.  The  cost 
of  condemning  one  (and  the  use  of  one  is  as  illegal  as  the. use  of  a 
dozen)  by  judicial  proceedings,  would  largely  exceed  the  value  of 
the  net,  and  doubtless  the  State  would,  in  many  cases,  be  deterred 
from  executing  the  law  by  the  expense.  They  could  only  be  re- 
moved from  the  water  with  difficulty,  and  were  liable  to  injury  in 
the  process  of  removal.  The  object  of  the  law  is  undoubtedly  a 
beneficent  one,  and  the  State  ought  not  to  be  hampered  in  its  en- 


486  THE  EXEBCISE  OF   OFFICIAL  AUTHOBITY. 

forcement  by  the  application  of  constitutional  provisions  which' 
are  intended  for  the  protection  of  substantial  rights  of  property. 
It  is  evident  that  the  efficacy  of  this  statute  would  be  very  seriously 
impaired  by  requiring  every  net  illegally  used  to  be  carefully  tal'en 
from  the  water,  carried  before  a  court  or  magistrate,  notice  of  the 
seizure  to  be  given  by  publication,  and  regular  judicial  proceed- 
ings to  be  instituted  for  its  condemnation. 

There  is  not  a  State  in  the  Union  which  has  not  a  constitutional 
provision  entitling  persons  charged  with  crime  to  a  trial  by  jury, 
and  yet  from  time  immemorial  the  practice  has  been  to  try  persons 
charged  with  petty  offences  before  a  police  magistrate,  who  not 
only  passes  upon  the  question  of  guilt,  but  metes  out  the  proper 
punishment.  This  has  never  been  treated  as  an  infraction  of  the 
Constitution,  though  technically  a  person  may  in  this  way  be  de- 
prived of  his  liberty  without  the  intervention  of  a  jury.  In  Callan 
v.  Wilson,  127  U.  S.  540,  and  cases  cited.  So  the  summary  abate- 
ment of  nuisances  without  judicial  process  or  proceeding  was  well 
known  to  the  common  law  long  prior  to  the  adoption  of  the  Consti- 
tution, and  it  has  never  been  supposed  that  the  constitutional  pro- 
vision in  question  in  this  case  was  intended  to  interfere  with  the 
established  principles  in  that  regard. 

It  is  said,  however,  that  the  nets  are  not  in  themselves  a  nui- 
sance, but  are  perfectly  lawful  acts  of  manufacture,  and  are  or- 
dinarily used  for  a  lawful  purpose.  This  is,  however,  by  no  means 
a  conclusive  answer.  Many  articles,  such,  for  instance,  as  cards, 
dice,  and  other  articles  used  for  gambling  purposes,  are  perfectly 
harmless  in  themselves,  but  may  become  nuisances  by  being  put  to 
an  illegal  use,  and  in  such  cases  fall  within  the  ban  of  the  law  and 
may  be  summarily  destroyed.  It  is  true  that  this  rule  does  not 
always  follow  from  the  illegal  use  of  a  harmless  article.  A  house 
may  not  be  torn  down  because  it  Is  put  to  an  illegal  use,  since  it 
may  as  readily  be  used  for  a  lawful  purpose,  (Ely  v.  Supervisors^ 
36  N.  Y.  297),  but  where  minor  articles  of  personal  property  are 
devoted  to  such  use  the  fact  that  they  may  be  used  for  a  lawful 
purpose  would  not  deprive  the  legislature  of  the  power  to  destroy 
them.  The  power  of  the  legislature  to  declare  that  which  is  per- 
fectly innocent  in  itself  to  be  unlawful  is  beyond  question,  {People 
V.  West,  106  N.  Y.  293,)  and  in  such  case  the  legislature  may  annex 
to  the  prohibited  act  all  the  incidents  of  a  criminal  offence,  includ- 
ing the  destruction  of  property  denounced  by  it  as  a  public  nuis- 
ance. 


FIELDS    V.     STOKELY.  487 

It  is  true  there  are  several  cases  of  a  contrary  purport.  Some 
of  these  cases,  however,  may  be  explained  upon  the  ground  that 
the  property  seized  was  of  considerable  value — leck  v.  Anderson, 
57  Cal.  251,  boats  as  well  as  nets ;  Dunn  v.  Burleigh,  62  Maine  24, 
teams  and  supplies  in  lumber;  King  v.  Hayes,  80  Maine  206,  a 
horse;  in  others  the  court  seems  to  have  taken  a  more  technical 
view  of  the  law  than  the  necessities  of  the  case  or  an  adequate  pro- 
tection of  the  owner  required.  Lowry  v.  Radnwater,  70  Mo.  152; 
State  V.  Bobbins,  124  Ind.  308;  Bidgway  v.  West,  60  Ind.  371. 

Upon  the  whole  we  agree  with  the  Court  of  Appeals  in  holding 
this  act  to  be  constitutional,  and  the  judgment  of  the  Supreme 
Court  is,  therefore, 

Affirmed. 


FIELDS  V.  STOKELY. 

Supreme  Court  of  Pennsylvania.    January,  1882. 
99  Penn.  St.  306. 

January  6th,  1882.  Before  Shabswood,  C.  J.,  Mercur,  Gordon, 
Paxson,  Trunkey,  Sterrett,  and  Green,  JJ. 

Error  to  the  Court  of  Common  Pleas  No,  1,  of  Philadelphia 
County;  of  January  Term,  1880,  No.  329. 

Tresspass,  by  George  F.  Fields  against  William  S.  Stokely,  to 
recover  damages  for  the  destruction  of  a  wooden  building  be- 
longing to  the  plaintiff  which  had  been  torn  down  and  demolished 
by  defendant's  orders.  Pleas,  not  guilty,  and  a  special  plea,  to 
which  a  demurrer  was  sustained. 

Defendant  then  filed  an  additional  plea,  all  the  facts  set  forth  in 
which  were  admitted  on  the  trial  to  wit :  That  the  defendant  was, 
in  September,  1876,  at  the  date  of  the  alleged  trespass,  mayor  of 
Philadelphia,  and  also  a  citizen,  tax-payer  and  property  owner; 
that  the  United  States  Centennial  Exhibition  was  then  in  progress 
at  Fairmount  Park;  that  the  plaintiff  and  others,  in  violation  of 
an  ordinance  of  councils,  had  erected  on  Elm  avenue,  bordering 
on  the  exhibition  grounds,  numbers  of  wooden  booths,  sheds,  shan- 
ties and  buildings,  composed  wholly  of  highly  combustible  materi- 
als, insufficiently  provided  with  chimneys  or  protected  against  fire ; 
that  of  the  plaintiff  being  occupied  as  a  bar-room,  and  the  resort 
of  disorderly  persons;  that  the  said  premises  were  in  close  prox- 


488  THE    EXEHCISE    OF    OFFICIAL    AUTHORITY. 

imity  to  the  buildings  of  the  city,  state,  and  other  buildings  of 
the  International  Exhibition,  which  were  thereby  imperiled.  That 
the  grand  jury  made  a  special  presentment  to  the  quarter  sessions 
of  the  said  wooden  buildings  as  common  nuisances,  dangerous  to 
life  and  property  whereupon  the  judge  then  holding  said  court, 
ordered  the  defendant,  as  mayor,  to  abate  said  nuisance  by  tearing 
down  and  removing  said  buildings,  if  the  owner  thereof,  after 
forty-eight  hours  notice,  failed  to  do  so;  and  the  plaintiff  having 
failed  to  remove  the  buildings  in  question  after  notice,  the  de- 
fendant caused  the  same  to  be  torn  down,  doing  as  little  damage 
as  he  reasonably  could,  &c. 

It  further  appeared  on  the  trial  before  Peirce,  J.,  that  the  plain- 
tiff had  leased  the  lots  whereon  the  buildings  in  question  was 
erected ;  that  it  was  so  erected  without  a  permit  from  the  building 
inspectors,  and  without  authority  from  councils,  the  mayor  having 
vetoed  an  ordinance  which  had  been  passed  permitting  its  erec- 
tion; the  plaintiff  and  his  builder  admitted  that  they  knew  they 
were  erecting  the  building  in  violation  of  law. 

The  plaintiff  requested  the  court  to  instruct  the  jury :  '  *  That 
the  defendant  acted  wholly  without  authority  of  law  in  tearing 
down  the  building  of  the  plaintiff,  and  he  is  liable  for  the  damage 
resulting  from  his  commands,  and  the  jury  should  find  a  verdict 
for  the  plaintiff  for  the  amount  of  damages  which  they  believe,  ac- 
cording to  the  evidence,  he  sustained."  Answer.  I  do  not  affirm 
that  point ;  on  the  contrary,  I  negative  it,  leaving  to  you  the  ques- 
tion of  nuisance,  or  no  nuisance;  then  if  no  nuisance  the  plaintiff 
is  entitled  to  the  damage  sustained ;  and  if  nuisance,  if  the  plain- 
tiff maintained  a  nuisance  there,  he  is  not  entitled  to  damages." 

In  the  general  charge  the  judge  said:  "The  first  question  which 
arises  in  this  case  is,  was  or  was  not  this  building,  thus  taken  down 
by  the  mayor,  a  nuisance  ?  Was  it  such  a  common  peril  to  the  wel- 
fare of  the  citizens  of  Philadelphia,  and  to  all  who  were  to  assem- 
ble here  and  visit  the  great  exhibition,  to  the  property  exposed  to 

danger,  as  to  amount  to  a  nuisance? If  you  find  it 

to  be  a  nuisance,  then  I  say  that  the  defendant  must  justify  him- 
self under  the  fact  that  it  was  a  nuisance,  and  especially  acting 
as  the  head  of  a  great  municipality;  acting  under  the  order  of  a 
judge  of  a  court ;  acting  upon  the  presentment  of  a  grand  jurj'',  all 
tend  to  show  that  it  was  not  mere  private  thought  or  feeling; 
that  he  was  not  prompted  to  it  by  any  desire  to  do  any  particular 

wrong  to   this  .individual You   will   look   at  the 

whole  case  carefully,  and  at  the  facts  and  the  law  as  I  have  given 


FIELDS    V.     STOKELY.  489 

it  to  you,  and  if  you  find  that  the  plaintiff  was  maintaining  a  nui- 
sance there,  then  he  is  not  entitled  to  recover  at  all,  and  your 
verdict  should  be  for  the  defendant.  If,  on  the  contrary,  there 
was  no  nuisance  there,  then  you  will  give  such  damages  as  the 
plaintiff  would  be  entitled  to  recover  under  the  evidence  and  facts 
as  they  have  been  testified  to  here." 

Verdict  and  judgment  for  defendant.  The  plaintiff  took  this 
writ  of  error,  (1)  the  refusal  of  the  court  to  affirm  his  point,  as 
above,  and,  (2)  *'that  the  entire  charge  was  calculated  to  mislead 
the  jury  in  this,  that  a  wooden  building  erected  on  private  free- 
hold could  be  a  public  nuisance ;  and  that,  without  any  conviction 
on  indictment,  or  a  decree  of  a  court,  an  individual  who  was  a 
mayor  could  abate  it  at  his  will. ' ' 

Chief  Justice  Sharswood  delivered  the  opinion  of  the  Court, 
January  23d,  1882. 

It  appears  by  the  record  before  us  that  it  was  expressly  agreed, 
after  the  trial  had  progressed  some  time,  that  all  the  facts  set  forth 
in  the  special  plea,  not  already  proved,  should  be  considered  as 
having  been  proved.  The  plea,  inter  alia,  avers  that  the  houses 
mentioned  in  the  declaration  and  for  the  removal  of  which  this 
action  was  brought  were  composed  of  wholly  or  highly  inflamable 
and  combustible  materials,  and  were  insufficiently  provided  with 
chimneys  and  the  usual  and  ordinary  appliances  for  protection 
against  fire,  and  were  so  used  constantly,  night  and  day,  by 
drunken  and  disorderly  persons,  that  the  lives,  health  and  prop- 
erty of  citizens  were  greatly  endangered  and  the  public  safety 
imperilled.  The  question  whether  they  were  a  public  nuisance 
was  fairly  submitted  to  the  jury  by  the  learned  judge  below,  and 
the  verdict  of  the  jury  in  favor  of  the  defendant  established  that 
fact.  Had  the  presentment  by  the  grand  jury  been  followed  up  by 
an  indictment,  trial  and  conviction  of  the  plaintiff  below,  the  judg- 
ment thereon  would  have  been  that  the  nuisances  should  be  abated, 
and  would  have  been  a  conclusive  justification  of  the  action  of 
the  defendant.  The  defendant  was  the  mayor  of  the  city,  and 
charged  with  the  conservation  of  the  peace  and  the  protection 
of  the  property  of  the  city.  It  is  true  that  a  wooden  building, 
though  erected  contrary  to  law,  is  not  per  se  a  public  nuisance, 
But  it  may  become  such  by  the  manner  in  which  it  is  used  or  al- 
lowed to  be  used.  It  is  true  that  a  private  person  not  specially 
aggrieved  cannot  abate  a  public  nuisance,  and  especially  where 
a  statute  provides  a  remedy  for  an  offense  created  by  it,  that 
must  be  followed.     It  is  well  settled,  however,  that   a  private 


490  THE    EXEBCISE   OF    OFFICIAL    AIJTHOBITY. 

person,  if  specially  aggrieved  by  a  public  nuisance,  may  abate  it. 

The  jury,  under  the  charge  of  the  learned  judge,  has  found 
these  buildings  to  be  of  that  character.  The  city  of  Philadelphia 
was  the  owner  of  large  and  valuable  property  in  their  neigh- 
borhood. Any  hour  of  the  day  and  night  they  were  in  danger  of 
being  set  on  fire  by  those  who  frequented  them  with  the  owner's 
permission.  It  is  stated  as  a  fact  in  the  special  plea,  and  of  course 
a  fact  admitted  by  the  agreement,  that  the  public  safety  was  im- 
perilled. Nothing  more  was  necessary  to  justify  the  action  of  the 
defendant.  If  the  owner  or  tenant  of  a  powder  magazine  should 
madly  or  wickedly  insist  on  smoking  a  cigar  on  the  premises,  can 
anyone  doubt  that  a  policeman  or  even  a  neighbor  could  justify 
in  trespass  for  forcibly  ejecting  him  and  his  cigar  from  his  own 
premises?  It  is  true,  that  a  private  person  assuming  to  abate 
a  public  nuisance  takes  upon  himself  the  responsibility  of  prov- 
ing to  the  satisfaction  of  a  jury,  the  fact  of  nuisance.  The  official 
position  of  the  defendant,  as  mayor  of  Philadelphia,  did  not 
relieve  him  from  his  personal  responsibility  in  this  respect.  But 
he  has  been  sustained  by  the  verdict  of  a  jury,  which  is  a  justi- 
fication of  his  alleged  trespass.  We  are  of  opinion  that  this  case 
was  properly  submitted  to  the  determination  of  the  jury,  that 
there  was  nothing  in  the  charge  calculated  to  mislead  them,  and 
that  it  would  have  been  manifest  error  if  the  learned  judge  had 
affirmed  the  plaintiff's  point,  and  thereby  in  effect  instructed  the 
jury  to  find  a  verdict  in  his  favor. 

Judgment  affirmed. 

Summary  administrative  proceedings,  when  authorized  by  statute, 
may  constitutionally  be  made  use  of  to  deprive  one  who  is  suffering 
from  a  contagious  disease  of  his  liberty  by  confining  him  in  a  hospital. 
Haverty  v.  Bass,  66  Me.  71. 


CHAPTER  VIIL     ^ 

UABIUTY  OF  THE  GOVERNMENT  FOR  ACTS  OF  OFFICERS. 

I.    At  Common  Law. 

THE    SIREN. 

Supreme  Court  of  the  United  States.    December,  1868. 
7  IVall.  152. 

The  steamer  Siren  was  captured  in  the  harbor  of  Charleston 
m  attempting  to  violate  the  blockade  of  that  port,  in  February, 
1865,  by  the  steamer,  Gladiolus,  belonging  to  the  navy  of  the 
United  States.  She  was  placed  in  charge  of  a  prize  master  and 
crew,  and  ordered  to  the  port  of  Boston  for  adjudication.  On 
her  way  she  was  obliged  to  put  into  the  port  of  New  York  for 
coal,  and,  in  proceeding  thence,  through  the  narrow  passage  which 
leads  to  Long  Island  Sound,  known  as  Hurlgate,  she  ran  into  and 
sank  the  sloop  Harper,  loaded  with  iron  and  bound  from  New 
York  to  Providence,  Rhode  Island.  The  collision  was  regarded  by 
this  court,  on  the  evidence,  as  the  fault  of  the  Siren. 

On  the  arrival  of  the  steamer  at  Boston,  a  libel  in  prize  was 
filed  against  her,  and  no  claim  having  been  presented,  she  was 
in  April  following,  condemned  as  lawful  prize,  and  sold.  The 
proceeds  of  the  sale  were  deposited  with  the  assistant  treasurer 
of  the  United  States,  in  compliance  with  the  act  of  Congress, 
where  they  now  remain,  subject  to  the  order  of  the  court. 

In  these  proceedings  the  owner  of  the  sloop  Harper,  and  the 
owners  of  her  cargo,  intervened  by  petition,  asserting  a  claim  upon 
the  vessel  and  her  proceeds,  for  the  damage  sustained  by  tne 
collision,  and  praying  that  their  claims  might  be  allowed,  and 
paid  out  of  the  proceeds. 

The  District  Court  held  that  the  intervention  could  not  be  al- 
lowed, and  dismissed  the  petitions ;  and  hence  the  present  appeals, 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

It  is  a  familiar  doctrine  of  the  common  law,  that  the  sovereign 
cannot  be  sued  in  his  own  courts  without  his  consent.  The  doc- 
trine rests  upon  reasons  of  public  policy;  the  inconvenience  and 

491 


492  LIABILITY   OF   GOVERNMENT  FOE  ACTS  OF  OFFICERS. 

danger  which  would  follow  from  any  different  rule.  It  is  obvious 
that  the  public  service  would  be  hindered,  and  the  public  safety 
endangered,  if  the  supreme  authority  could  be  subjected  to  suit 
at  the  instance  of  every  citizen,  and  consequently  controlled  in 
the  use  and  disposition  of  means  required  for  the  proper  admin- 
istration of  the  government.  The  exemption  from  direct  suit 
is,  therefore,  without  exception.  This  doctrine  of  the  common 
law  is  equally  applicable  to  the  supreme  authority  of  the  nation, 
the  United  States.  They  cannot  be  subjected  to  legal  proceedings 
at  law  or  in  equity  without  their  consent;  and  whoever  institutes 
such  proceedings  must  bring  his  case  within  the  authority  of  some 
act  of  Congress.  Such  is  the  language  of  the  court  in  United 
States  V.  Clarke,  8  Peters  444. 

The  same  exemption  from  judicial  process  extends  to  the  prop- 
erty of  the  United  States,  and  for  the  same  reasons.  As  justly 
observed  by  the  learned  judge  who  tried  this  case,  there  is  no 
distinction  between  suits  against  the  government  directly,  and 
suits  against  its  property. 

But  although  direct  suits  cannot  be  maintained  against  the  Uni- 
ted States,  or  against  their  property,  yet,  when  the  United 
States  institutes  a  suit,  they  waive  their  exemption  so  far  as  to 
allow  a  presentation  by  the  defendant  of  the  set-offs,  legal  and 
equitable,  to  the  extent  of  the  demand  made  or  property  claimed, 
and  when  they  proceed  in  rem,  they  open  to  consideration  all 
claims  and  equities  in  regard  to  the.  property  libelled.  They  then 
stand  in  such  proceedings,  with  reference  to  the  rights  of  defend- 
ants or  claimants,  precisely  as  private  suitors,  except  that  they 
are  exempt  from  costs  and  from  aflBrmative  relief  against  them, 
beyond  the  demand  or  property  in  controversy.  In  United  States 
V.  Ringgold,  8  Peters  150,  a  claim  of  the  defendant  was  allowed 
as  a  set-off  to  the  demand  of  the  government.  "No  direct  suit," 
said  the  court,  **can  be  maintained  against  the  United  States. 
But  when  an  action  is  brought  by  the  United  States  to  recover 
moneys  in  the  hands  of  a  party  who  has  a  legal  claim  against  them, 
it  would  be  a  very  rigid  principle  to  deny  to  him  the  right  of  set- 
ting up  such  claim  in  a  court  of  justice,  and  turn  him  round  to 
an  application  to  Congress."  So  in  United  States  v.  Macdaniel,  7 
Peters  16,  to  which  reference  is  made  in  the  case  cited,  the  de- 
fendant was  allowed  to  set  off  against  the  demand  of  the  govern- 
ment a  claim  for  services  as  agent  for  the  payment  of  the  navy 
pension  fund,  to  which  the  court  held  he  was  equitably  entitled. 
The  question  said  the  court,  was,  whether  the  defendant  should 


THE    SIREN.  493 

surrender  the  money  which  happened  to  be  in  his  hands,  and  then 
petition  Congress  on  the  subject ;  and  it  was  held  the  government 
had  no  right,  legal  or  equitable,  to  the  money. 

For  the  damages  occasioned  by  collision  of  vessels  at  sea  a 
claim  is  created  against  the  vessel  in  fault,  in  favor  of  the  in- 
jured party.  This  claim  may  be  enforced  in  the  admiralty  by 
a  proceeding  in  rem,  except  where  the  vessel  is  the  property  of 
the  United  States.  In  such  case,  the  claim  exists  equally  as  if/ 
the  vessel  belongs  to  a  private  citizen,  but  for  reasons  of  public/ 
policy,  already  stated,  cannot  be  enforced  by  direct  proceedings' 
against  the  vessel.  It  stands,  in  that  respect,  like  a  claim  against 
the  government,  incapable  of  enforcement  without  its  consent, 
and  unavailable  for  any  purpose. 

The  inability  to  enforce  the  claim  against  the  vessel  is  not  in- 
consistent with  its  existence. 

Seamen's  wages  constitute  preferred  claims,  under  the  maritime 
law,  upon  all  vessels ;  yet  they  cannot  be  enforced  against  a  vessel 
of  the  nation,  or  a  vessel  employed  in  its  service.  In  a  case  before 
the  Admiralty  Court  of  Pennsylvania,  in  1781,  it  was  adjudged, 
on  a  plea  to  the  jurisdiction,  that  mariners  enlisting  on  board  a 
ship  of  war  belonging  to  a  sovereign  independent  state  could  not 
libel  the  ship  for  their  wages. 

Even  where  claims  are  made  liens  upon  the  property  by  statute, 
they  cannot  be  enforced  by  direct  suit,  if  the  property  subse- 
quently vests  in  the  government.  Thus  in  Massachusetts,  the  stat- 
utes provide,  that  any  person  to  whom  money  is  due  for  labor 
and  materials  furnished  in  the  construction  of  a  vessel  in  that 
commonwealth,  shall  have  a  lien  upon  her,  which  shall  be  pre- 
ferred to  all  other  liens  except  mariners'  wages,  and  shall  continue 
until  the  debt  is  paid,  unless  lost  by  a  failure  to  comply  with  cer- 
tain specific  conditions;  yet  in  a  recent  case,  where  a  vessel  sub- 
ject to  a  lien  of  this  character  was  transferred  to  the  United  States, 
it  was  held  the  lien  could  not  be  enforced  in  the  courts  of  that 
state.  The  decision  was  placed  on  the  general  exemption  of  the 
government  and  its  property  from  legal  process.  Briggs  et  al.  v. 
Light  Boats,  11  Allen,  157. 

The  authorities  to  which  we  have  referred  are  sufficient  to  show 
that  the  existence  of  a  claim,  and  even  of  a  lien  upon  property,  is 
not  always  dependant  upon  the  ability  of  the  holder  to  enforce 


494  LIABILITY   OF   GOVERNMENT   FOB   ACTS   OF   OFFICERS. 

it  by  legal  proceedings.  A  claim  for  lien  existing  or  continuing 
will  be  enforced  by  the  courts  whenever  the  property  upon  which 
it  lies  becomes  subject  to  their  jurisdiction  and  control.  Then 
the  rights  and  interests  of  all  parties  will  be  respected  and  main- 
tained. Thus,  if  the  government,  having  title  to  the  land  sub- 
ject to  the  mortgage  of  the  previous  owner,  should  transfer  the 
property,  the  jurisdiction  of  the  court  to  enforce  the  lien  would 
at  once  attach,  as  it  existed  before  the  acquisition  of  the  property 
by  the  government. 

So  if  property  belonging  to  the  government,  upon  which  claims 
exist,  is  sold  upon  judicial  decree,  and  the  proceeds  are  paid  into 
the  registry,  the  court  would  have  jurisdiction  to  direct  the 
claims  to  be  satisfied  out  of  them.  Such  decree  of  sale  could  only 
be  made  upon  application  of  the  government,  and  by  its  appear- 
ance in  court,  as  we  have  already  said,  it  waives  its  exemption  and 
submits  to  the  application  of  the  same  principle  by  which  justice 
is  administered  between  private  suitors. 

Now,  it  is  a  settled  principle  of  admiralty  law,  that  all  mari- 
time claims  upon  a  vessel  extend  equally  to  the  proceeds  arising 
from  its  sale,  and  are  to  be  satisfied  out  of  them.  Assuming, 
therefore,  that  the  Siren  was  in  fault,  and  that  by  the  tort  she 
committed  a  claim  was  created  against  her,  we  do  not  perceive 
any  just  ground  for  refusing  its  satisfaction  out  of  the  proceeds 
of  her  sale.  The  government  is  the  actor  in  the  suit  for  her  con- 
demnation. It  asks  for  her  sale,  and  the  proceeds  coming  into 
the  registry  of  the  court,  come  affected  with  all  the  claims  which 
existed  on  the  vessel  created  subsequent  to  her  capture.  There 
is  no  authority  that  we  are  aware  of,  which  would  exempt  them 
under  these  circumstances,  because  of  the  exemption  of  the  gov- 
ernment from  a  direct  proceeding  in  rem  against  the  vessel  while 
in  its  custody. 

It  does  not  appear  that  the  court  below  considered  the  evi- 
dence as  to  the  character  and  extent  of  the  alleged  tort.  It  ap- 
pears to  have  placed  its  decision  entirely  upon  the  legal  propo- 
sition, that  the  captured  vessel  was  exempt  from  legal  process  at 
the  suit  of  the  interventors,  and  that  consequently  the  proceeds 
of  the  vessel  could  not  be  subjected  to  the  satisfaction  of  their 
claims.  We  have,  however,  looked  into  the  evidence,  and  are  ^ 
satisfied  that  the  collision  was  the  fault  of  the  Siren. 

The  decree  must  be  reversed,  and  the  cause  remanded  to  thei 


THE     SIREN.  495 

court  below,  with  directions  to  assess  the  damages  and  pay  them     ' 
out  of  the  proceeds  of  the  vessel  before  distribution  to  the  captors. 

Ordered  accordingly. 
Mr.  Justice  Nelson  dissenting. 

The  government  may  by  ratification  make  itself  liable  for  contracts 
made  by  Its  officers  without  authority  of  law.  Wisconsin  v.  Torinus,  26 
Minn.  1. 


II.    By  Statute. 

DOOLEY  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     October,  1900. 
182  V.  S.  222. 

This  was  an  action  begun  in  the  Circuit  Court,  as  a  Court  of 
Claims,  by  the  firm  of  Dooley,  Smith  &  Co.,  engaged  in  trade  and 
commerce  between  Porto  Rico  and  New  York,  to  recover  back  cer- 
tain duties  to  the  amount  of  $5,374.58,  exacted  and  paid  under 
protest  at  the  port  of  San  Juan,  Porto  Rico,  upon  several  con- 
signments of  merchandise  imported  into  Porto  Rico  from  New 
York  between  July  26,  1898,  and  May  1,  1900. 

A  demurrer  was  interposed  upon  the  ground  of  the  want  of 
jurisdiction,  and  the  insufficiency  of  the  complaint.  The  Circuit 
Court  sustained  the  demurrer  upon  the  second  ground,  and  dis- 
missed the  petition.    Hence  this  writ  of  error. 

Mr.  Justice  Brown,  after  making  the  above  statement,  deliv- 
ered the  opinion  of  the  court. 

1.  The  jurisdiction  of  the  court  in  this  case  is  attacked  by 
the  Government  upon  the  ground  that  the  Circuit  Court,  as  a 
Court  of  Claims,  cannot  take  cognizance  of  actions  for  the  re- 
covery of  duties  illegally  exacted. 

By  an  act  passed  March  3,  1887,  to  provide  for  the  bringing 
of  suits  against  the  government,  known  as  the  Tucker  Act,  24 
Stat.  505,  c.  359,  the  Court  of  Claims  was  vested  with  jurisdiction 
over  "first,  all  claims  founded  upon  the  Constitution  of  the  Uni- 
ted States  or  any  law  of  Congress,  except  for  pensions,  or  upon 
any  regulation  of  an  executive  department,  or  upon  any  contract. 


496  LIABILITY   OF   GOVERNMENT   FOB   ACTS   OF   OFFICERS. 

express  or  implied,  with  the  government  of  the  United  States,  or 
for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in 
tort,  in  respect  of  which  claims  the  party  would  be  entitled  to 
redress  against  the  United  States  either  in  court  of  law,  equity 
or  admiralty,  if  the  United  States  were  suable;"  and  by  section 
2  the  District  and  Circuit  Courts  were  given  concurrent  juris- 
diction to  a  certain  amount. 

The  first  section  evidently  contemplates  four  distinct  classes  of 
cases:  (1)  those  founded  upon  the  Constitution  or  any  law  of 
Congress,  with  an  exception  of  pension  cases;  (2)  cases  founded 
upon  a  regulation  of  an  Executive  Department;  (3)  cases  of 
contract,  express  or  implied,  with  the  government;  (4)  actions 
for  damages,  liquidated  or  unliquidated,  in  cases  not  sounding 
in  tort.  The  words  **not  sounding  in  tort"  are  in  terms  refer- 
able only  to  the  fourth  class  of  cases. 

The  exception  to  the  jurisdiction  is  based  upon  two  grounds: 
First,  that  the  court  has  no  jurisdiction  of  cases  arising  under 
the  revenue  laws;  and,  second,  that  it  has  no  jurisdiction  in 
actions  for  tort. 

In  support  of  the  first  proposition  we  are  cited  to  the  case  of 
Nichols  V.  United  States,  7  Wall.  122,  in  which  it  was  broadly 
stated  that  "cases  arising  under  the  revenue  laws  are  not  within 
the  jurisdiction  of  the  Court  of  Claims." 

By  the  Customs  Administrative  Act  of  1890,  as  we  have  just 
held  in  De  Lima  v.  Bidwell,  an  appeal  is  given  from  the  decision 
of  the  collector  "as  to  the  rate  and  amount  of  duties  chargable 
upon  imported  merchandise,"  to  a  board  of  general  appraisers, 
whose  decision  shall  be  final  and  conclusive  *as  to  the  construction 
of  the  law  and  the  facts  respecting  the  classification  of  such  mer- 
chandize and  the  rate  of  duties  imposed  thereon  under  such  classi- 
fication," unless  application  be  made  for  a  review  to  the  Circuit 
Court  of  the  United  States.  This  remedy  is  doubtless  exclusive  as 
applied  to  customs  cases;  but,  as  we  then  held,  it  has  no  applica- 
tion to  actions  against  the  collector  for  duties  exacted  upon  goods 
which  were  not  imported  at  all.  Such  cases,  although  arising 
under  the  revenue  laws,  are  not  within  the  purview  of  the  Cus- 
toms Administrative  Act;  as  for  such  cases  there  is  still  a  com- 
mon law  right  of  action  against  the  collector,  and  we  think  also 
by  application  to  the  Court  of  Claims.  There  would  seem  to  bo 
no  doubt  about  plaintiff's  remedy  against  the  collector  at  San 
Juan. 


DOOLEY  V.  UNITED  STATES.  497 

In  the  Nichols  case,  it  was  held  that,  as  there  was  a  remedy  of 
action  against  the  collector,  expressly  provided  by  statute,  that 
remedy  was  exclusive.  In  De  Lima  v.  Bidwell  we  held  that  al- 
though no  other  remedy  was  given  expressly  by  statute  than  that 
provided  by  the  Customs  Administrative  act,  there  was  still  a 
common  law  remedy  against  the  collector  for  duties  exacted  upon 
goods  not  imported  at  all;  but  it  does  not  therefore  follow  that 
this  remedy  is  exclusive;  and  that  the  importer  may  not  avail 
himself  of  his  right  of  action  in  the  Court  of  Claims. 

But  conceding  that  the  Nichols  case  does  not  stand  in  the  way 
of  a  suit  in  the  Court  of  Claims,  the  government  takes  the  posi- 
tion that  a  suit  in  the  United  States  to  recover  back  duties  ille- 
gally exacted  by  a  collector  of  customs  is  really  an  action  "sound- 
ing in  tort,"  though  not  an  action  *'for  damages,  liquidated  or 
unliquidated,"  within  the  fourth  class  of  cases  enumerated  in  the 
Tucker  act. 

There  are  a  number  of  authorities  in  this  court  upon  that  sub- 
ject which  require  examination.  The  question,  is,  whether  any 
claim  sounding  in  tort  can  be  prosecuted  in  the  Court  of  Claims, 
notwithstanding  the  words  "not  sounding  in  tort, "'in  the  Tucker 
act,  are  apparently  limited  to  claims  for  damages,  liquidated  or 
unliquidated.  The  question  was  first  considered  in  Langford  v. 
United.  States,  101  U.  S.  341,  under  the  statute  above  cited,  giving 
the  court  of  Claims  power  to  hear  and  determine  "all  claims 
founded  upon  any  law  of  Congress,  or  upon  any  regulation  of  an 
Executive  Department,  or  upon  any  contract,  express  or  implied, 
with  the  government  of  the  United  States. ' '  The  suit  was  brought 
to  recover  for  the  use  and  occupation  of  certain  lands  and  build- 
ings of  which  possession  had  been  forcibly  taken  by  agents  of 
the  government,  against  the  will  of  Langford,  who  claimed  title 
to  the  lands.  It  was  held  that  the  act  of  the  United  States  in 
taking  and  holding  possession  was  an  unequivocal  tort,  and  a  dis- 
tinction was  drawn  between  such  a  case  and  one  where  the  gov- 
ernment takes  for  public  use  lands  to  which  it  asserts  no  claim 
of  title,  but  admits  the  ownership  to  be  private  or  individual,  in 
which  class  there  arises  an  implied  obligation  to  pay  the  owner 
its  just  value.  "It  is  a  very  different  matter  where  the  govern- 
ment claims  it  is  dealing  with  its  own,  and  recognizes  no  title 
superior  to  its  own.  In  such  case  the  government,  or  the  officers 
who  seize  such  property,  are  guilty  of  a  tort,  if  it  be  in  fact 
private  property."  It  was  held  that  the  limitation  of  the  act 
to  cases  of  contract,  express  or  implied,  "was  established  in 
32 


498  LIABILITY  OP  GOVEBNMENT  FOB  ACTS  OF  0FFICEE8. 

reference  to  the  distinction  between  actions  arising  out  of  con- 
tracts, as  distinguished  between  those  founded  on  torts,  which 
is  inherent  in  the  essential  nature  of  judicial  remedies  under 
all  systems,  and  especially  under  the  system  of  the  common  law.'* 

In  the  cases  under  consideration  the  argument  is  made  that  the 
money  was  tortiously  exacted;  that  the  alternative  of  payment  to 
the  collector  was  a  seizure  and  sale  of  the  merchandise  for  the 
non-payment  of  duties;  and  it  mattered  not  that  at  common  law 
an  action  for  money  had  and  received  would  have  lain  against  the 
collector  to  recover  them  back.  But  whether  the  exactions  of 
these  duties  were  tortious  or  not ;  whether  it  was  within  the  power 
of  the  importer  to  waive  the  tort  and  bring  suit  in  the  Court 
of  Claims  for  money  had  and  received,  as  upon  an  implied 
contract  of  the  United  States  to  refund  the  money  in  case  it  was 
illegally  exacted,  we  think  the  case  is  one  within  the  first  class  of 
cases  specified  in  the  Tucker  act  of  claims  founded  upon  a  law 
of  Congress,  namely,  a  revenue  law,  in  respect  to  which  class  of 
cases  the  jurisdiction  of  the  Court  of  Claims,  under  the  Tucker 
act,  has  been  repeatedly  sustained. 

Thus,  in  United  States  v.  Kaufman,  96  U.  S.  567,  a  brewer 
who  had  been  illegally  assessed  for  a  special  tax  upon  his  busi- 
ness, was  held  entitled  to  bring  suit  in  the  Court  of  Claims  to 
recover  back  the  amount,  on  the  ground  that  no  special  remedy 
had  been  provided  for  the  enforcement  of  the  payment,  and  con- 
sequently the  general  laws  which  govern  the  Court  of  Claims,  may 
be  resorted  to  for  relief,  if  any  can  be  found  applicable  to  such  a 
case.  This  is  upon  the  principle  that  a  liability  created  by  statute 
without  a  remedy  may  be  enforced  by  a  common-law  action.  The 
Nichols  case  was  distinguished  upon  the  ground  that  the  statute 
there  had  provided  a  special  remedy. 

So,  too,  in  United  States  v.  Savings  Bank,  104  U.  S.  728,  the 
Court  of  Claims  was  held  to  have  jurisdiction  of  a  suit  to  recover 
back  certain  taxes  and  penalties  assessed  upon  a  savings  bank. 

In  Campbell  v.  United  States,  107  U.  S.  407,  it  was  held  that  a 
party  claiming  to  be  entitled  to  a  drawback  of  duties  upon  manu- 
factured articles  exported  might,  when  payment  thereof  has  been 
refused,  maintain  a  suit  in  the  Court  of  Claims,  because  the  facts 
found  raised  an  implied  contract  that  the  United  States  would 
refund  to  the  importer  the  amount  he  had  paid  to  the  govern- 
ment.   There  was  here  no  question  of  tort. 

In  United  States  v.  Great  Falls  Manufacturing  Co.,  112  U. 


DOOLEY  V.  UNITED  STATES.  499 

S.  645,  it  was  held,  following  the  observations  of  Mr.  Justice 
Miller,  in  Langford  v.  United  States,  that  where  property  to  which 
the  United  States  asserts  no  title  is  taken  by  their  officers  or 
agents,  pursuant  to  an  act  of  Congress,  as  private  property  for 
public  use,  there  was  an  implied  obligation  to  compensate  the 
owner,  which  might  be  enforced  by  suit  in  the  Court  of  Claims. 

So,  too,  in  Hollister  v.  Benedict  &  Burnham  Mfg.  Co.,  113 
U.  S.  59,  it  was  held  that  a  suit  might  be  maintained  in  the  Court 
of  Claims  to  recover  the  use  of  a  patented  invention,  if  the  right 
of  the  patentee  were  acknowledged.  To  the  same  effect  are 
United  States  v.  Palmer,  128  U.  S.  262,  and  United  States  v. 
Berden  Fire-Arms  Co.,  156  U.  S.  552. 

In  Medbury  v.  United  States,  173  U.  S.  492,  it  was  held  the 
Court  of  Claims  had  jurisdiction  of  an  action  to  recover  an  ex- 
cess of  payment  for  lands  within  the  limits  of  a  railroad  grant, 
which  grant  was,  subsequent  to  the  payment,  forfeited  by  an  act 
of  Congress  for  non-construction  of  the  road. 

In  Swift  V.  United  States,  111  U.  S.  22,  the  same  right  was 
created  as  existing  in  favor  of  a  party  who  sued  for  a  commis- 
sion upon  the  amount  of  certain  adhesive  stamps,  which  he  had  at 
the  time  purchased  for  his  own  use  from  the  Bureau  of  Internal 
Revenue.  See  also  United  States  v.  Lawson,  101  U.  S.  164;  Mosby 
V.  United  States,  133  U.  S.  273. 

The  judgment  of  the  circuit  court  is  therefore  reversed  and  the 
case  remanded  to  that  court  for  further  proceedings  in  conso- 
nance with  this  opinion. 


LEWIS  V.  STATE  OF  NEW  YORK. 

Court  of  Appeals  of  New  York.    May  6,  1884. 
96  N.  Y.  71. 

Appeal  from  a  decision  of  the  Board  of  Claims,  rendered  Oc- 
tober 10,  1883,  dismissing  a  claim  preferred  by  the  appellant 
against  the  State  on  the  ground  that  the  facts  stated  in  the  peti- 
tion did  not  constitute  a  cause  of  action. 

Danforth,  J.  The  claimant  in  March,  1879,  was  convicted 
of  the  crime  of  burglary  and  sentenced  to  the  state  prison. 


500  LIABILITY   OF   GOVERNMENT   FOR   ACTS   OF   OFFICERS. 

The  claimant  was  set  at  work  in  the  hollow-ware  department, 
and  while  engaged  in  carrying  molten  iron  in  a  ladle  discovered  a 
crack  in  the  shank  which  connected  the  bowl  with  the  handle.  He 
called  the  overseer's  attention  to  this  defect,  but  no  attention  was 
paid  to  his  complaint,  and  when  next  used  by  him  the  bowl  sep- 
arated from  the  shank,  and  the  melted  iron  coming  in  contact 
with  water  on  the  floor  exploded  with  such  effect  as  to  cause  him 
serious  injury.  In  January,  1882,  he  was  discharged.  In  Octo- 
ber, 1882,  he  presented  to  the  Board  of  Audit  a  claim  against  the 
State  for  damages  so  incurred,  and  this  claim  was  by  force  of 
the  statute  (Laws  of  1883,  chap.  205,  S.  12)  transferred  to  the 
Board  of  Claims,  where  it  was  dismissed,  on  the  ground  that  the 
facts  were  not  sufficient  to  constitute  a  cause  of  action  against  the 
State.     From  this  decision  an  appeal  is  taken  to  this  court. 

It  is  now  contended  by  the  learned  counsel  for  the  appellant 
that  the  act  of  the  overseer  in  compelling  the  claimant  to  use  the 
defective  ladle,  after  having  been  notified  of  its  unsafe  condition,"^ 
was  an  act  of  the  State  and  of  gross  and  inexcusable  negligence.j 
It  is  apparent  that  even  if  this  is  so  the  claimant  must  fail  unless 
the  doctrine  of  resvondenit  superior  can  be  applied  to  the  State,, 
and  the  State  made  liable  for  the  negligence  or  misfeasance  of  its) 
agents,  in  like  manner  as  a  natural  person  is  responsible  for  the 
acts  of  his  servants.     We  are  aware  of  no  principle  of  law,  norl 
of  any  adjudged  case  which  makes  that  application,  except  when j 
the  State,  by  its  legislature,  has  voluntarily  assumed  it.    The  con' 
trary  of  this  is  well  settled  upon  grounds  of  public  policy,  and 
the  doctrine  is  so  uniformly  asserted  by  writers  of  approved  au- 
thority and  the  courts  that  fresh  discussion  would  be  superfluous. 
Story  on  Agency,  S.   319,  7th  ed.     Indeed  the  principle   upon 
which  the  doctrine  is  founded — that  he  who  expects  to  derive 
advantage  from  an  act  which  is  done  by  another  for  him  must 
answer  for  any  injury  which  a  third  person  may  sustain  from  it, 
excludes  such  a  case  as  we  have  before  us.    The  claimant  was  not 
a  voluntary  servant  for  hire  and  reward,  nor  was  the  State  his 
master  in  any  ordinary  sense.     He  was  compelled  to  labor  as  a 
means  of  reformation,  and  to  endure  imprisonment  as  a  punish- 
ment and  for  the  protection  of  the  community.    While  employed  \ 
he  was  subject  to  such  regulations  as  the  keeper  charged  with  his 
custody  might,  from  time  to  time,  prescribe,  and  if  in  the  course 
of  service  he  sustained  injury,  it  must  be  attributed  to  the  cause^ 
which  placed  him  in  confinement.    He  acquires  thereby  no  claim' 
against  the  State,  nor  do  the  statutes  referred  to  by  his  learned 


THE    FLOYD     ACCEPTANCES.  501 

counsel    (Laws  of  1876,  chap,  444;  Laws  of  1883,  chap.   205) 
create  any  liability  on  his  part.     Therefore,  no  error  was  com- 
mitted by  the  Board  of  Claims,  and  its  decision  should  be  affirmed. 
All  concur. 

Decision  affirmed. 


THE  FLOYD  ACCEPTANCES. 

Supreme  Court  of  the  United  States.    December,  1868. 
7  IVall.  666. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  cases  before  us  are  demands  against  the  United  States, 
founded  upon  instruments  claimed  to  be  bills  of  exchange,  drawn 
by  Russell,  Majors  &  Waddell,  on  John  B.  Floyd,  Secretary  of 
War,  and  accepted  by  him  in  that  capacity;  purchased  by  plain- 
tiffs before  maturity,  for  a  valuable  consideration,  and,  as  they 
allege,  without  notice  of  any  defense  to  them. 

Mr.  Pierce,  in  his  petition,  relies  on  the  facts  that  the  signa- 
ture of  John  B.  Floyd,  to  these  acceptances,  is  genuine,  and  that 
he  was  at  the  time  of  the  acceptance  Secretary  of  War,  as  suffi- 
cient to  establish  his  claim.  He  avers  that  Floyd,  as  Secretary  of 
War,  had  authority  to  accept  the  drafts,  and  that  by  his  accep- 
tance the  United  States  became  bound.  It  is  evident  that  he 
means  by  this  merely  to  assert,  as  a  principle  of  law,  that,  by 
virtue  of  his  office,  the  Secretary  had  such  authority,  and  not 
that  there  existed,  in  this  case,  special  facts  which  gave  such 
authority ;  for  he  mentions  no  such  facts  in  his  petition,  and  when 
the  solicitors  for  the  defendant  undertook  to  show  under  what 
circumstances  the  bills  were  issued  and  accepted,  he  objected  to 
the  evidence.  Its  admission  is  one  of  the  alleged  errors  on  which 
he  brings  the  case  to  this  court. 

It  will  be  convenient,  therefore,  to  consider,  first,  the  propo- 
sition on  which  he  rests  his  case,  which,  if  found  to  be  sound, 
disposes  of  all  the  cases  in  favor  of  plaintiffs. 

One  of  the  main  elements  of  that  proposition,  much  and  elo- 
quently urged  upon  our  attention,  seems  to  be  too  well  established 
by  the  decisions  of  this  court  to  admit  now  of  serious  controversy. 


502  LIABILITY  OP  GOVERNMENT  FOB  ACTS  OF   0FFI0EB8. 

It  must  be  taken  as  settled,  that  when  the  United  States  becomes 
a  party  to  what  is  called  commercial  paper — ^by  which  is  meant 
that  class  of  paper  which  is  transferable  by  indorsement  or  deliv- 
ery, and  between  private  parties  is  exempt  in  the  hands  of  inno- 
cent holders  from  inquiry  into  the  circumstances  under  which  it 
was  put  in  circulation — they  are  bound  in  any  court,  to  whose 
jurisdiction  they  submit,  by  the  same  princioles  that  govern 
individuals  in  their  relations  to  such  paper. 

Conceding,  then,  for  the  sake  of  argument,  that  the  instru- 
ments under  consideration  are,  in  form,  bills  of  that  character, 
and  that  the  signature  of  Floyd  is  genuine,  and  that  he  was  at 
the  time  Secretary  of  War,  there  remains  but  one  question  to  be 
considered  essential  to  plaintiffs'  right  to  recover,  and  that  con- 
cerns the  authority  of  the  Secretary  to  accept  the  bills  on  behalf 
of  the  government. 

The  answer,  which  at  once  suggests  itself  to  one  familiar  with 
the  structure  of  our  government,  in  which  all  power  is  dele- 
gated, and  is  defined  by  law,  constitutional  or  statutory,  is,  that 
to  one  or  both  of  these  sources  we  must  resort  in  every  instance. 
We  have  no  officers  in  this  government,  from  the  President  down 
to  the  most  subordinate  agent,  who  does  not  hold  office  under 
the  law,  with  prescribed  duties  and  limited  authority.  And  while 
some  of  these,  as  the  President,  the  Legislature,  and  the  Judi- 
ciary, exercise  powers  in  some  sense  left  to  the  more  general 
definitions  necessarily  incident  to  fundamental  law  found  in  the 
Constitution,  the  larger  portion  of  them  are  the  creation  of  stat- 
utory law,  with  duties  and  powers  prescribed  and  limited  by  that 
law.  It  would  seem  reasonable,  then,  that  on  the  question  of 
authority  of  the  Secretary  of  War  to  accept  bills  of  exchange, 
we  must  look  mainly  to  the  acts  of  Congress. 

Recurring,  then,  to  the  written  law  as  the  exclusive  source  of 
such  authority,  we  may  confidently  assert  that  there  is  no  express  • 
authority  to  any  officer  of  the  government  to  draw  or  accept 
bills  of  exchange. 


The  authority  to  issue  bills  of  exchange  not  being  one  ex 
pressly  given  by  statute,  can  only  arise  as  an  incident  to  the 
exercise  of  some  other  power.  When  it  becomes  the  duty  of  an 
officer  to  pay  money  at  a  distant  point,  he  may  do  so  by  a  bill 
of  exchange,  because  that  is  the  usual  and  appropriate  mode  of 


dirn 
illl 


THE    FLOYD    ACCEPTANCES.  503 

doing  it.  So,  when  an  officer  or  agent  of  the  government  at  a 
distance,  is  entitled  to  money  here,  the  person  holding  the  fund 
may  pay  his  drafts.  And  whenever,  in  conducting  any  of  the 
fiscal  affairs  of  the  government,  the  drawing  of  a  bill  of  exchange 
is  the  appropriate  means  of  doing  that  which  the  department, 
or  officer  having  the  matter  in  charge,  has  a  right  to  do,  then  he 
can  draw  and  bind  the  government  in  so  doing.  But  the  obliga- 
tion resting  on  him  to  perform  that  duty,  and  his  right  and 
authority  to  effect  such  an  object,  is  always  open  to  inquiry,  and 
if  they  be  found  wanting,  or  if  they  be  forbidden  by  express 
statute,  then  the  draft  or  acceptance  is  not  binding  on  the  gov- 
ernment. 

It  cannot  be  maintained  that,  because  an  officer  can  lawfully 
issue  bills  of  exchange  for  some  purposes,  that  no  inquiry  can  be 
made  in  any  case  into  the  purpose  for  which  a  bill  was  issued. 
The  government  cannot  be  held  to  a  more  rigid  rule,  in  this 
respect,  than  a  private  individual. 

In  accordance  with  these  views,  we  are  of  opinion  that,  as  there 
can  be  no  lawful  occasion  for  any  department  of  the  government, 
or  for  any  of  its  officers,  or  agents,  to  accept  drafts  drawn  on 
them,  under  any  statute  or  other  law  now  known  to  us,  such  ac- 
ceptances cannot  bind  the  government. 

An  examination  of  the  facts  found  by  the  Court  of  Claims 
confirms  the  views  already  stated. 

Counsel  for  the  plaintiffs  seem  to  have  been  of  the  opinion  from 
the  start,  that  there  was  nothing  in  the  nature  of  the  transaction 
which  would  support  the  paper  on  which  they  sued,  for  they 
steadfastly  resisted  all  efforts  on  the  part  of  the  government  to 
give  the  facts  in  evidence;  and  in  the  arguments  made  in  this 
court,  the  right  to  recover  is  rested  almost  exclusively  on  the 
proposition  that,  because  in  some  cases  the  secretary  might  law- 
fully accept,  it  must  be  presumed  in  their  favor  that  these  drafts 
were  lawfully  accepted. 

It  seems  to  us  that  such  a  transaction  can  be  defended  on  no 
principle  of  law,  and  that,  in  thus  lending  to  Russell  &  Co,  the 
name  and  credit  of  the  United  States,  the  Secretary  was  acting 
wholly  beyond  the  scope  of  his  authority.  The  paper  was,  in 
fact,  accommodation  paper,  as  it  was  found  to  be  by  the  Court 
of  Claims,  by  which  the  Secretary  undertook  to  make  the  United 
States  acceptor  for  the  sole  benefit  of  the  drawers.     . 

If  these  acceptances  can  be  considered  as  payments,  they  wer^e 


604  LIABILITY  OF  GOVEBNMENT  FOB  ACTS  OF  0FFICEB8. 

payments  in  advance  of  the  service  rendered  and  supplies  fur- 
nished— payments  made  before  anything  was  due.  They  are  in 
that  view  not  only  without  auttiority  of  law,  but  are  expressly 
forbidden  by  the  act  of  January  31st,  1823.  The  first  section  of 
that  statute,  which  has  never  been  repealed,  enacts  "that,  from 
and  after  the  passing  of  this  act,  no  advance  of  public  money  shall 
be  made  in  any  case  whatever;  but  in  all  cases  of  contracts  for 
the  performance  of  any  service,  or  the  delivery  of  articles  of  any 
description  for  the  use  of  the  United  States,  payment  shall  not 
exceed  the  value  of  the  services  rendered,  or  the  articles  delivered 
previous  to  such  payment." 

The  transaction  by  which  these  drafts  were  accepted  was  in 
direct  violation  of  this  law,  and  of  the  limitations  which  it 
imposes  upon  all  oflScers  of  the  government.  Every  citizen  of  the 
United  States  is  supposed  to  know  the  law,  and  when  a  pur- 
chaser of  one  of  these  drafts  began  to  make  inquiries  necessary  to 
ascertain  the  authority  for  their  acceptance,  he  must  have  learned 
at  once  that,  if  received  by  Russell,  Majors  &  Waddell,  as  pay- 
ment, they  were  in  violation  of  law,  and  if  received  as  accommo- 
dation paper,  they  were  evasions  of  this  law,  and  without  any 
shadow  of  authority. 

These  cases  have  long  been  before  the  departments,  before 
Congress,  and  the  Court  of  Claims,  and  have  been  the  subject  of 
much  laborious  consideration  everywhere.  The  amount  involved 
is  large,  the  principles  on  which  the  claims  are  asserted  are,  to 
some  extent,  new,  and  we  have  given  them  a  careful  and  earnest 
mvestigation.  We  are  of  opinion  that  the  judgments  rendered 
by  the  Court  of  Claims  against  the  plaintiffs,  must  be 

Afjirmed. 

Mr.  Justice  Nelson  (with  whom  concurred  Grier  and  Clifford, 
JJ.)  dissenting. 

See  also  for  the  powers  an  officer  possesses  to  bind  the  government, 
Mulnlx  V.  Mutual  Life  Ins.  Co.,  23  Col.  71.  inlra.  Other  instances  of  the 
liability  of  the  government  in  contract  are,  Parsons  v.  United  States, 
167  U.  S.  324;  Shurtleff  v.  United  States.  189  U.  S.  311;  Hall  v.  Wiscon- 
sin, 103  U.  S.  5;  Campbell  v.  United  States,  107  U.  S.  407;  United  SUtea 
V.  Langston,  118  U.  S.  389;  Kehn  v.  State,  93  N.  Y.  291;  Dunlap  v. 
United  States,  173  U.  S.  65;  United  States  v.  Symonds.  120  U.  S.  46; 
Romero  v.  United  States,  24  Ct.  of  U.  431,  and  United  States  v.  Saunders, 
120  U.  S.  126.  When  a  contract  has  been  legally  made  with  the  govern- 
ment, its  liability  is  the  same  as  that  of  an  ordinary  party  unless  limited 
by  statute.    People  v.  Stephens,  71  N.  Y.  549 


UNITED    STATES    V.    LEE.  505 

III.    As  A  Result  of  Suits  Against  Officers. 

UNITED  STATES  V.  LEE. 

[Supreme  Qourt  of^tJie  United  States.    October,  1882) 
106  U.  S.  196. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

These  are  two  writs  of  error  to  the  same  judgment;  one  prose- 
cuted by  the  United  States,  eo  nomine;  and  the  other  by  the  Attor- 
ney-General of  the  United  States,  in  the  names  of  Frederick 
Kaufman  and  Richard  P.  Strong,  the  defendants  against  whom 
judgment  was  rendered  in  the  Circuit  Court. 

The  action  was  originally  commenced  in  the  Circuit  for  the 
county  of  Alexandrie,  in  the  state  of  Virginia,  by  George  W.  P. 
C.  Lee,  against  Kaufman  and  Strong  and  a  great  number  of 
others,  to  recover  possession  of  a  parcel  of  land  of  about  eleven 
hundred  acres,  known  as  the  Arlington  estate.  It  was  in  the  form 
prescribed  by  the  statutes  of  Virginia,  under  which  the  pleadings 
are  in  the  names  of  the  real  parties,  plaintiff  and  defendant. 

As  soon  as  the  declaration  was  filed  the  case  was,  by  writ  of 
certiorari,  removed  to  the  Circuit  Court  of  the  United  States, 
where  all  the  subsequent  proceedings  took  place. 

We  have  then  two  questions  presented  to  the  court  and  jury 
below,  and  the  same  questions  arise  in  this  court  on  the  record: 

1.  Could  any  action  be  maintained  against  the  defendants  for 
the  possession  of  the  land  in  controversy  under  the  circumstances 
of  the  relation  of  that  possession  to  the  United  States, 
however  clear  the  legal  right  to  that  possession  might  be  in  the 
plaintiff? 

The  counsel  for  plaintiffs  in  error  and  in  behalf  of  the  United 
States  assert  the  proposition,  that  though  it  has  been  ascertained 
by  the  verdict  of  the  jury,  in  which  no  error  is  found,  that  the 
plaintiff  has  the  title  to  the  land  in  controversy,  and  that  what  is 
set  up  in  behalf  of  the  United  States  is  no  title  at  all,  the  court 
can  render  no  judgment  in  favor  of  the  plaintiff  against  the 
defendants  in  the  action,  because  the  latter  hold  the  property  as 


506  LIABILITY  OF  GOVEBNTMENT  FOB  ACTS  OF  0FFI0EE8. 

officers  and  agents  of  the  United  States,  and  it  is  appropriated 
to  lawful  public  uses. 

This  proposition  rests  on  the  principle  that  the  United  States 
cannot  be  lawfully  sued  without  its  consent  in  any  case,  and  that 
no  action  can  be  maintained  against  any  individual  without  such 
consent,  where  the  judgment  must  depend  on  the  right  of  the 
United  States  to  property  held  by  such  persons  as  officers  or 
agents  of  the  government. 

The  first  branch  of  this  proposition  is  conceded  to  be  the  estab- 
lished law  of  this  country  and  of  this  court  at  the  present  day; 
the  second,  as  a  necessary  or  proper  deduction  from  the  first, 
is  denied. 

While  acceding  to  the  general  proposition  that  in  no  court  can 
the  United  States  be  sued  directly  by  original  process  as  a  de- 
fendant, there  is  abundant  evidence  in  the  decisions  of  this  court 
that  the  doctrine,  if  not  absolutely  limited  to  cases  in  which 
the  United  States  are  made  defendants  by  name,  is  not  permitted 
to  interfere  with  the  judicial  enforcement  of  the  established  rights 
of  plaintiffs  when  the  United  States  is  not  a  defendant  or  a  nec- 
essary party  to  the  suit. 

The  earliest  case  in  this  court  in  which  the  true  rule  is  laid 
down,  and  which,  bearing  a  close  analogy  to  the  one  before  us, 
seems  decisive  of  it,  is  United  States  v.  Peters,  5  Cranch  115.  In 
an  admiralty  proceeding  commenced  before  the  formation  of  the 
Constitution,  and  which  afterwards  came  into  the  District  Court 
of  the  United  States  for  Pennsylvania,  that  court,  after  full 
hearing,  had  decided  that  the  libellants  were  entitled  to  the  pro- 
ceeds of  the  sale  of  a  vessel  condemned  as  prize  of  war,  which  had 
come  to  the  possession  of  David  Rittenhouse  as  treasurer  of  Penn- 
sylvania. The  District  Judge  had  declined  to  issue  any  process 
to  enforce  his  decree  against  the  representatives  of  Rittenhouse, 
on  the  ground  that  the  funds  were  held  as  property  of  that  statej 
and  that  as  she  could  not  be  subjected  to  judicial  process,  neither 
could  the  officer  who  held  the  money  in  her  right.  The  analogy 
to  the  case  before  us  will  be  seen  when  it  is  further  stated  that 
this  claim  of  the  state  to  the  money  had  been  fully  presented,  and 
that  the  court  had  decided  that  the  libellants  and  not  the  state 
were  legally  entitled  to  it.  In  that  case,  as  in  this,  it  was  argued 
that  the  suit  was  in  reality  against  the  state.  But,  on  application 
therefor,  a  writ  of  mandamus  to  compel  the  judge  of  the  District 


UNITED    STATES    V.     LEE.  507 

Court  to  proceed  in  the  execution  of  his  decree  was  granted.  In 
delivering  the  opinion,  Mr.  Chief  Justice  Marshall  says:  **The 
state  cannot  be  made  a  defendant  to  a  suit  brought  by  an  indi- 
vidual, but  it  remains  the  duty  of  the  courts  of  the  United  States 
to  decide  all  cases  brought  before  them  by  citizens  of  one  state 
against  citizens  of  a  different  state,  when  a  state  is  not  neces- 
sarily a  defendant.  In  this  case,  the  suit  was  not  instituted 
against  the  state  or  its  treasurer,  but  against  the  executrixes  of 
David  Kittenhouse,  for  the  proceeds  of  a  vessel  condemned  in  the 
Court  of  Admiralty,  which  were  admitted  to  be  in  their  posses- 
sion. If  these  proceeds  had  been  actual  property  of  Pennsyl- 
vania, however  wrongfully  acquired,  the  disclosures  of  that  fact 
would  have  presented  a  case  on  which  it  was  unnecessary  to  give 
an  opinion;  but  it  certainly  can  never  be  alleged  that  a  mere 
suggestion  of  title  in  a  state  to  property  in  possession  of  an  indi- 
vidual must  arrest  the  proceedings  of  the  court,  and  prevent  their 
looking  into  the  suggestion  and  examining  the  validity  of  the 
title." 

The  case  before  us  is  a  suit  against  Strong  and  Kaufman  as 
individuals,  to  recover  possession  of  property.  The  suggestion 
was  made  that  it  was  the  property  of  the  United  States,  and  that 
the  court,  without  inquiring  into  the  truth  of  this  suggestion, 
should  proceed  no  further;  and  in  this  case,  as  in  that,  after  a 
judicial  inquiry  had  made  it  clear  that  the  property  belonged 
to  the  plaintiff  and  not  to  the  United  States,  we  are  still  asked 
to  forbid  the  court  below  to  proceed  further,  and  to  reverse  and 
set  aside  what  it  has  done,  and  thus  refuse  to  perform  the  duty 
of  deciding  suits  properly  brought  before  us  by  citizens  of  the 
United  States. 

It  may  be  said — in  fact,  it  is  said — that  the  present  case  differs 
from  the  one  in  5  Cranch,  because  the  officers  who  are  sued  assert 
no  personal  possession,  but  are  holding  as  the  mere  agents  of  the 
United  State,  while  the  executors  of  Rittenhouse  held  the  money 
until  a  better  right  was  established. 

Osborn  v.  Bank  of  United  States,  9  Wheat.  738,  is  a  leading 
case,  remarkable  in  many  respects,  and  in  none  more  than  in 
those  resembling  the  one  before  us. 

It  was  this:  The  state  of  Ohio  having  levied  a  tax  upon  the 
branch  of  the  Bank  of  the  United  States  located  in  that  state, 
which  the  bank  refused  to  pay,  Osborn,  auditor  of  the  state,  was 
about  to  proceed  to  collect  said  tax  by  a  seizure  of  the  money  of 


6108  LIABILITY   OF  GOVERNMENT   FOB  ACTS   OF   OFFICERS. 

the  bank  in  its  vaults,  and  an  amended  bill  alleged  that  he  had 
so  seized  $100,000,  and  while  aware  that  an  injunction  had  been 
issued  by  the  Circuit  Court  of  the  United  States  on  the  prayer 
of  the  bank,  the  money  so  seized  had  been  delivered  to  the  treas- 
urer of  the  state,  Curry,  and  afterwards  came  to  the  possession 
of  Sullivan,  who  had  succeeded  Curry  as  treasurer.  Both  Curry 
and  Sullivan  were  made  defendants  as  well  as  Osbom  and  his 
assistant.  Harper. 

One  of  the  objections  pressed  with  pertinacity  all  through  the 
case  to  the  jurisidiction  of  the  court  was  the  conceded  fact  that 
the  state  of  Ohio,  though  not  made  a  defendant  to  the  bill,  was 
the  real  party  in  interest.  That  all  the  parties  sued  were  her 
officers — her  auditor,  her  treasurer,  and  their  agents — concerning 
acts  done  in  their  official  character,  and  in  obedience  to  her  laws. 
It  was  conceded  that  the  state  could  not  be  sued,  and  it  was 
earnestly  argued  there,  as  here,  that  what  could  not  be  done 
directly  could  not  be  done  by  suing  her  officers.  And  it  was  in- 
sisted that  while  the  state  could  not  be  brought  before  the  court, 
it  was  a  necessary  party  to  the  relief  sought,  namely,  the  return 
of  the  money  and  obedience  to  the  injunction,  and  that  the  bill 
must  be  dismissed. 

A  few  citations  from  the  opinion  of  Mr.  Chief  Justice  Marshall 
will  show  the  views  entertained  by  the  court  on  the  question  thus 
raised : 

"If  the  state  of  Ohio  could  have  been  made  a  party  defendant, 
it  can  scarcely  be  denied  that  this  would  be  a  strong  case  for  an 
injunction.  The  objection  is  that,  as  the  real  party  cannot  be 
brought  before  the  court,  a  suit  cannot  be  sustained  against  the 
agents  of  that  party;  and  cases  have  been  cited  to  show  that  a 
court  of  chancery  will  not  make  a  decree  unless  all  those  who 
are  substantially  interested  be  made  parties  to  the  suit.  This  is 
certainly  true  where  it  is  in  the  power  of  the  plaintiff  to  make 
them  parties;  but  if  the  person  who  is  the  real  principal,  the 
person  who  is  the  true  source  of  the  mischief,  by  whose  power 
and  for  whose  advantage  it  is  done,  be  himself  above  the  law,  be 
exempt  from  all  judicial  process,  it  would  be  subversive  of  the 
best  established  principles  to  say  that  the  laws  could  not  afford 
the  same  remedies  against  the  agent  employed  in  doing  the  wrong 
which  they  would  afford  against  him  could  his  principal  be  joined 
in  the  suit." 

In  another  place  he  says:  "The  process  is  substantially,  though 
not  in  form,  against  the  state  .  and  the  direct  interest 


UNITED     STATES     V.     LEE,  509 

of  the  state  in  the  suit  as  brought  is  admitted;  and  had  it  been 
in  the  power  of  the  bank  to  make  it  a  party,  perhaps  no  decree 
ought  to  have  been  pronounced  in  the  cause  until  the  state  was 
before  the  court.  But  this  was  not  in  the  power  of  the  bank 
.  and  the  very  difficult  question  is  to  be  decided,  whether, 
in  such  a  case,  the  court  may  act  upon  agents  employed  by  the 
state  and  on  the  property  in  their  hands."  In  answering  this 
question  he  says:  "A  denial  of  jurisdiction  forbids  all  inquiry 
into  the  nature  of  the  case.  It  applies  to  cases  perfectly  clear  in 
themselves;  to  cases  in  which  the  government  is  in  the  exercise 
of  its  best-established  and  most  essential  powers,  as  well  as  in 
those  which  may  be  deemed  questionable.  It  asserts  that  the 
agents  of  a  state,  alleging  the  authority  of  a  law  void  in  itself 
because  repugnant  to  the  Constitution,  may  arrest  the  execution 
of  any  law  in  the  United  States."  Again:  "The  bank  contends 
that  in  all  cases  in  which  jurisdiction  depends  on  the  character 
of  the  party,  reference  is  made  to  the  party  on  the  record,  not 
to  one  who  may  be  interested,  but  it  is  not  shown  by  the  record 
to  be  a  party."  "If  this  question  were  to  be  determined  on  the 
authority  of  English  decisions,  it  is  believed  that  no  case  can  be 
adduced  where  any  person  can  be  considered  as  a  party,  who  is 
not  made  so  in  the  record."  Again:  "In  cases  where  a  state  is 
a  party  on  the  record,  the  question  of  jurisdiction  is  decided  by 
inspection.  If  jurisdiction  depend  not  on  this  plain  fact,  but 
on  the  interest  of  the  state,  what  rule  has  the  Constitution  given 
by  which  this  interest  is  to  be  measured?  If  no  rule  is  given,  is 
it  to  be  settled  by  the  court?  If  so,  the  curious  anomaly  is  pre- 
sented of  a  court  examining  the  whole  testimony  of  a  cause, 
inquiring  into  and  deciding  on  the  extent  of  the  state's  interest, 
without  having  a  right  to  exercise  any  jurisdiction  in  the  case. 
Can  this  inquiry  be  made  without  the  exercise  of  jurisdiction  ? ' ' 

The  decree  of  the  Circuit  Court  ordering  a  restitution  of  the 
money  was  affirmed. 

These  decisions  have  never  been  overruled.  On  the  contrary, 
as  late  as  the  case  of  Davis  v.  Gray,  16  Wall.  203,  the  case  of 
Osborn  v.  Bank  of  United  States  is  cited  with  approval  as  estab- 
lishing these  among  other  propositions;  "Where  the  state  is 
concerned,  the  state  should  be  made  a  party,  if  it  can  be  done. 
That  it  cannot  be  done  is  a  sufficient  reason  for  the  omission  to 
do  it,  and  the  court  may  proceed  to  decree  against  the  officers  of 
the  state  in  all  respects  as  if  the  state  were  a  party  to  the  record. 


510  LIABILITY   OF   GOVERNMENT   FOR   ACTS   OF   OFFICERS. 

In  deciding  who  are  parties  to  the  suit,  the  court  will  not  look 
beyond  the  record.  Making  a  state  officer  a  party  is  not  making 
the  state  a  party,  although  her  law  may  have  prompted  his  action, 
and  the  state  may  stand  behind  him  as  a  real  party  in  interest. 
A  state  can  be  made  a  party  only  by  shaping  the  bill  expressly 
with  that  view,  as  where  individuals  or  corporations  are  intended 
to  be  put  in  that  relation  to  the  case." 

Though  not  prepared  to  say  now  that  the  court  can  proceed 
against  the  officer  in  "all  respects"  as  if  the  state  were  a  party, 
this  may  be  taken  as  intimating  in  a  general  way  the  views  of  the 
court  at  that  time. 

This  examination  of  the  cases  in  this  court  establishes  clearly 
this  result:  that  the  proposition  that  when  an  individual  is  sued 
in  regard  to  property  which  he  holds  as  officer  or  agent  of  the 
United  States,  his  possession  cannot  be  disturbed  when  that  fact 
is  brought  to  the  attention  of  the  court,  has  been  overruled  and 
denied  in  every  case  where  it  has  been  necessary  to  decide  it,  and 
that  in  many  cases  where  the  record  shows  that  the  case  as  tried 
below  actually  and  clearly  presented  that  defense,  it  was  neither 
urged  by  counsel  nor  considered  by  the  court  here,  though  if  it 
had  been  a  good  defense,  it  would  have  avoided  the  necessity  of 
a  long  inquiry  into  plaintiff's  title  and  of  other  perplexing  ques- 
tions, and  have  quickly  disposed  of  the  case.  And  we  see  no 
escape  from  the  conclusion  that  during  all  this  period  the  court 
has  held  the  principle  to  be  unsound. 

The  fact  that  the  property  which  is  the  subject  of  this  contro- 
versy is  devoted  to  public  uses,  is  strongly  urged  as  a  reason  why 
those  who  are  so  using  it  under  the  authority  of  the  United  States 
shall  not  be  used  for  its  possession  even  by  one  who  proves  a 
clear  title  to  that  possession. 

The  objection  is  also  inconsistent  with  the  principle  involved 
in  the  last  two  clauses  of  article  5  of  the  amendments  to  the  Con- 
stitution of  the  United  States,  whose  language  is:  "That  no 
person     .  .     shall  be  deprived  of  life,  liberty,  or  property 

without  due  process  of  law,  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation. ' ' 

Conceding  that  the  property  in  controversy  in  this  case  is 
devoted  to  a  proper  public  use,  and  that  this  has  been  done  by 
those  having  authority  to  establish  a  cemetery  and  a  fort,  the 


UNITED     STATES    V.     LEE.  511 

verdict  of  the  jury  finds  that  it  is  and  was  the  private  property 
of  the  plaintiff,  and  was  taken  without  any  process  of  law  and 
without  any  compensation.  Undoubtedly  those  provisions  of  the 
Constitution  are  of  that  character  which  it  is  intended  the  courts 
shall  enforce,  when  cases  involving  their  operation  and  effect  are 
brought  before  them.  The  instances  in  which  the  life  and  liberty 
of  the  citizen  have  been  protected  by  the  judicial  writ  of  habeas 
corpus  are  too  familiar  to  need  citation,  and  many  of  these  cases, 
indeed  mostly  all  of  them,  are  those  in  which  life  and  liberty 
was  invaded  by  persons  assuming  to  act  under  the  authority  of 
the  government.    Ex  parte  MUligaiif  4  Wall.  2. 

If  this  constitutional  provision  is  a  sufficient  authority  for  the 
court  to  interfere  to  rescue  a  prisoner  from  the  hands  of  those 
holding  him  under  the  asserted  authority  of  the  government,  what 
reason  is  there  that  the  same  courts  shall  not  give  remedy  to  the 
citizen  whose  property  has  been  seized  without  due  process  of  law, 
and  devoted  to  public  use  without  just  compensation? 

What  is  that  right  as  established  by  the  verdict  of  the  jury  in 
this  case?  It  is  the  right  to  the  possession  of  the  homestead  of 
plaintiff.  A  right  to  recover  that  which  has  been  taken  from  him 
by  force  and  violence,  and  detained  by  the  strong  hand.  This 
right  being  clearly  established,  we  are  told  that  the  court  can 
proceed  no  further  because  it  appears  that  certain  military  offi- 
cers, acting  under  the  orders  of  the  President,  have  seized  this 
estate,  and  converted  one  part  of  it  into  a  military  fort  and 
another  into  a  cemetery. 

It  is  not  pretended,  as  the  case  now  stands,  that  the  President 
had  any  lawful  authority  to  do  this,  or  that  the  legislative  body 
could  give  him  any  such  authority  except  upon  payment  of  just 
compensation.  The  defense  stands  here  solely  upon  the  absolute 
immunity  from  judicial  inquiry  of  everyone  who  asserts  authority 
from  the  executive  branch  of  the  government,  however  clear  it 
may  be  made  that  the  executive  possessed  no  such  power.  Not 
only  no  such  power  is  given,  but  it  is  absolutely  prohibited,  both 
to  the  executive  and  to  the  legislative,  to  deprive  anyone  of  life, 
liberty,  or  property  without  due  process  of  law,  or  to  take  private 
property  without  just  compensation. 

These  provisions  for  the  security  of  the  rights  of  the  citizen 
stand  in  the  Constitution  in  the  same  connection  and  upon  the 
same  ground,  as  they  regard  his  liberty  and  his  property.  It 
cannot  be  denied  that  both  were  intended  to  be  enforced  by  the 


512  LIABILITY   OF   GOVERNMENT   FOB   ACTS   OF   OFFICERS. 

judiciary  as  one  of  the  departments  of  the  government  estab- 
lished by  that  Constitution.  As  we  have  already  said,  the  writ 
of  habeas  corpus  has  been  often  used  to  defend  the  liberty  of  the 
citizen,  and  even  his  life,  against  the  assertion  of  unlawful  author- 
ity on  the  part  of  the  executive  and  legislative  branches  of  the 
government.  See  Ex  parte  Milligan,  4  Wall.  2;  Kilbourn  v. 
Thompson,  103  U.  S.  168. 

No  man  in  this  country  is  so  high  that  he  is  above  the  law  No 
officer  of  the  law  may  set  the  law  at  defiance  with  impunity.  All 
the  officers  of  the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law,  and  are  bound  to  obey  it. 

It  is  the  only  supreme  power  in  our  system  of  government,  and 
every  man  who  by  accepting  office  participates  in  its  functions 
is  only  the  more  strongly  bound  to  submit  to  that  supremacy,  and 
to  observe  the  limitations  which  it  imposes  upon  the  exercise  of 
the  authority  which  it  gives. 

Courts  of  justice  are  established,  not  only  to  decide  upon  the 
controverted  rights  of  the  citizens  as  against  each  other,  but  also 
upon  rights  in  controversy  between  them  and  the  government; 
and  the  docket  of  this  court  is  crowded  with  controversies  of  the 
latter  class. 

Shall  it  be  said,  in  the  face  of  all  this,  and  of  the  acknowledged 
right  of  the  judiciary  to  decide  in  proper  cases,  statutes  which 
have  been  passed  by  both  branches  of  Congress  and  approved  by 
the  President  to  be  unconstitutional,  that  the  courts  cannot  give 
a  remedy  when  the  citizen  has  been  deprived  of  his  property  by 
force,  his  estate  seized  and  converted  to  the  use  of  the  govern- 
ment without  lawful  authority,  without  process  of  law,  and  with- 
out compensation,  because  the  President  has  ordered  it  and  his 
officers  are  in  possession? 

If  such  be  the  law  of  this  country,  it  sanctions  a  tyranny  which 
has  no  existence  in  the  monarchies  of  Europe,  nor  in  any  other 
government  which  has  a  just  claim  to  well-regulated  liberty  and 
the  protection  of  personal  rights. 

It  cannot  be,  then,  that  when,  in  a  suit  between  two  citizens  for 
the  ownership  of  real  estate,  one  of  them  has  established  his  right 
to  the  possession  of  the  property  according  to  all  the  forms  of 
judicial  procedure,  and  by  the  verdict  of  a  jury  and  the  judg- 
ment of  the  court,  the  wrongful  possessor  can  say  successfully 
to  the  court,  Stop  here,  I  hold  by  order  of  the  President,  and  the 
progress  of  justice  must  be  stayed.  That,  though  the  nature  of 
the  controversy  is  one  peculiarly  appropriate  to  the  judicial  func- 


NEW   HAMPSHIRE   V.    LOUISIANA.  513 

tion,  though  the  United  States  is  no  party  to  the  suit,  though  one 
of  the  three  great  branches  of  the  government  to  which  by  the 
Constitution  this  duty  has  been  assigned  has  declared  its  judg- 
ment after  a  fair  trial,  the  unsuccessful  party  can  interpose  an 
absolute  veto  upon  that  judgment  by  the  production  of  an  order 
of  the  Secretary  of  War,  which  that  officer  had  no  more  authority 
to  make  than  the  humblest  private  citizen. 

•  •  •  •  ••  •:•:• 

The  Circuit  Court  was  competent  to  decide  the  issues  in  this 
case  between  the  parties  that  were  before  it;  in  the  principles 
on  which  these  issues  were  decided  no  error  has  been  found;  and 
its  judgment  is 

Aiflrmed. 

Mr.  Justice  Gray,  with  whom  concurred  Mr.  Chief  Justice 
Waite,  Mr.  Justice  Bradley,  and  Mr.  Justice  Woods,  dissenting. 

The  same  principle  is  applied  by  the  Supreme  Court  to  state  oflacers. 
TIndal  v.  Wesley,  167  U.  S.  204.  Other  instances  of  suits  brought  against 
officers  which  are  really  against  the  government,  since  the  judgment  is 
paid  by  the  government,  are  Hilton  v.  Merritt,  110  U.  S.,  97,  supra,  and 
Field  V.  Clark,  143  U.  S.  649. 


IV.    Liability  op  State  to  Action  in  United  States  Courts. 

NEW  HAMPSHIRE  V.  LOUISIANA  AND  OTHERS. 

NEW  YORK,  V.  LOUISIANA  AND  OTHERS. 

Supreme  Court  of  the  United  States.    October,  1882. 
108  V.  S.  76. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 
After  stating  the  case  he  continued : 

The  first  question  we  have  to  settle  is  whether  upon  the  facts 
shown,  these  suits  can  be  maintained  in  this  court. 

Art.  Ill,  sec.  2,  of  the  Constitution  provides  that  the  judicial 
power  of  the  United  States  shall  extend  to  **  controversies  between 
two  or  more  States,"  and  "between  a  State  and  citizens  of  another 
State."  By  the  same  article  and  section  it  is  also  provided  that 
in  cases  **in  which  a  State  shall  be  a  party,  the  Supreme  Court 
shall  have  original  jurisdiction."  By  the  Judiciary  Act  of  1789, 
33 


514.  LIABILITY   OF   GOVERNMENT  FOB   ACTS   OF   0FFICEE8. 

0.  20,  sec.  13,  1  Stat.  80,  the  Supreme  Court  was  given  "exclusive 
jurisdiction  of  all  controversies  of  a  civil  nature,  where  a  State 
is  a  party,  except  between  a  State  and  its  citizens,  and  except  also 
between  a  State  and  citizens  of  other  States,  or  aliens,  in  which 
latter  case  it  shall  have  original  but  not  exclusive  jurisdiction." 

Such  being  the  condition  of  the  law,  Alexander  Chisholm,  as 
executor  of  Robert  Farqhuar,  commenced  an  action  of  assumpsit  in 
this  court  against  the  State  of  Georgia,  and  process  was  served  on 
the  governor  and  attorney-general.  Chisholm  v.  Georgia,  2  Dall, 
419.  On  the  11th  of  August,  1792,  after  the  process  was  thus 
served  on  Mr.  Randolph,  the  attorney-general  of  the  United  States, 
as  counsel  for  the  plaintiff,  moved  for  a  judgment  by  default  on 
the  fourth  day  of  the  next  term,  unless  the  State  should  then,  after 
notice,  show  cause  to  the  contrary.  At  the  next  term  Mr.  Inger- 
soU  and  Mr.  Dallas  presented  a  written  remonstrance  and  pro- 
testation on  behalf  of  the  State  against  the  exercise  of  jurisdic- 
tion, but  in  consequence  of  positive  instructions  they  declined  to 
argue  the  question.  Mr.  Randolph,  thereupon,  proceeded  alone, 
and  in  opening  his  argument  said:  **I  did  not  want  the  remon- 
strance of  Georgia  to  satisfy  me  that  the  motion  which  I  have  made 
is  unpopular.  Before  the  remonstrance  was  read  I  had  learnt  from 
the  acts  of  another  State,  whose  will  must  always  be  dear  to  me, 
that  she  condemned  it." 

On  the  19th  of  February,  1793,  the  judgment  of  the  court  was 
announced,  and  the  jurisdiction  sustained,  four  of  the  justices 
being  in  favor  of  granting  the  motion  and  one  against  it. 

As  soon  as  the  decision  was  announced,  steps  were  taken  to 
secure  an  amendment  of  the  Constitution  withdrawing  jurisdic- 
tion. 

soon  after  the  next  Congress  came  together,  the 

eleventh  amendment  to  the  Constitution  was  proposed,  and  after- 
wards ratified  by  the  requisite  number  of  States,  so  as  to  go  into 
effect  on  the  8th  of  January,  1789.  That  amendment  is  as  fol- 
lows: 

"The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State,  or 
by  citizens  and  subjects  of  any  foreign  State." 

Under  the  operation  of  this  amendment  the  actual  owners  of  the 
bonds  and  coupons  held  by  New  Hampshire  and  New  York  are 


NEW  HAMPSHIRE  V.    LOUISIANA.  515 

precluded  from  prosecuting  these  suits  in  their  own  names.  The 
real  question,  is,  therefore,  whether  they  can  sue  in  the  name  of 
their  respective  States,  after  getting  the  consent  of  the  State,  or, 
to  put  it  in  another  way,  whether  the  State  can  allow  the  use  of 
its  name  in  such  a  suit  for  the  benefit  of  one  of  its  citizens. 

The  language  of  the  amendment  is,  in  effect,  that  the  judicial 
power  of  the  United  States  shall  not  extend  to  any  suit  com- 
menced or  prosecuted  by  citizens  of  one  State  against  another 
State.  No  one  can  look  at  the  pleadings  and  testimony  in  these  \ 
cases  without  being  satisfied,  beyond  all  doubt,  that  they  were  in 
legal  effect  commenced,  and  are  now  prosecuted,  solely  by  the 
owners  of  the  bonds  and  coupons.  In  New  Hampshire,  before  the 
Attorney  General  is  authorized  to  begin  a  suit,  the  owner  of  the 
bond  must  deposit  with  him  a  sum  of  money  sufficient  to  pay  all 
costs  and  expenses.  No  compromise  can  be  effected  except  with 
the  consent  of  the  owner  of  the  claim.  No  money  of  the  State  can 
be  expended  in  the  proceeding,  but  all  expenses  must  be  borne 
by  the  owner,  who  may  associate  with  the  Attorney  General  such 
counsel  as  he  chooses,  the  State  being  in  no  way  responsible  for 
fees.  All  moneys  collected  are  to  be  kept  by  the  Attorney  Gen- 
eral, as  special  trustee,  separate  and  apart  from  the  other  moneys 
of  the  State,  and  paid  over  by  him  to  the  owner  of  the  claim,  after 
deducting  all  expenses  incurred  not  before  that  time  paid  by  the 
owner.  The  bill,  although  signed  by  the  Attorney  General,  is  also 
signed,  and  was  evidently  drawn,  by  the  same  counsel  who  prose- 
cuted the  suits  for  the  bondholders  in  Louisiana,  and  it  is  mani- 
fested in  many  ways  that  both  the  State  and  the  Attorney  Gen- 
eral are  only  nominal  actors  in  the  proceeding.  The  bond  owner, 
whoever  he  may  be,  was  the  promoter  and  is  the  manager  of  the 
suit.  He  pays  the  expenses,  is  the  only  one  authorized  to  conclude 
a  compromise,  and  if  any  money  is  ever  collected,  it  must  be  paid 
to  him  without  even  passing  through  the  form  of  getting  into  the 
treasury  of  the  State. 

In  New  York  no  special  provision  is  made  for  compromise  or  the 
employment  of  additional  counsel,  but  the  bondholder  is  required 
to  secure  and  pay  all  expenses  and  gets  all  the  money  that  is 
recovered.  This  State,  as  well  as  New  Hampshire,  is  nothing  more 
nor  less  than  a  mere  collecting  agent  of  the  owners  of  the  bonds 
and  coupons,  and  while  the  suits  are  in  the  names  of  the  States, 
they  are  under  the  actual  control  of  individual  citizens,  and  are 
prosecuted  and  carried  on  altogether  by  and  for  them. 

It  is  contended,  however,  that,  notwithstanding  the  prohibition 


516  LIABILITY  OF  GOVERNMENT  FOB  ACTS  OF   OFFICEES. 

of  the  amendment,  the  States  may  prosecute  the  suits,  becauae  as 
the  ** sovereign  and  trustee  of  its  citizens,"  a  State  is  "clothed 
with  the  right  and  faculty  of  making  an  imperative  demand  upon 
another  independent  State  for  the  payment  of  debts  which  it  owes 
to  citizens  of  the  former. ' '  There  is  no  doubt  but  one  nation  may, 
if  it  sees  fit,  demand  of  another  nation  the  payment  of  a  debt, 
owing  by  the  latter  to  a  citizen  of  the  former.  Such  power  is  well 
recognized  as  an  incident  of  national  sovereignty,  but  it  involves 
also  the  national  power  of  levying  war  and  making  treaties.  As 
was  said  in  the  United  States  v.  Diekelman,  92  U.  S.  520,  if  a 
sovereign  assumes  the  responsibility  of  presenting  the  claim  of 
one  of  his  subjects  against  another  sovereign,  the  prosecution  will 
be  as  one  nation  proceeds  against  another,  not  by  suit  in  the  courts, 
as  of  right,  but  by  diplomatic  negotiations,  or,  if  need  be,  by  war." 

All  the  rights  of  the  States  as  independent  nations  were  sur- 
rendered to  the  United  States.  The  States  are  not  nations,  either) 
as  between  themselves  or  towards  foreign  nations.  They  are  sover 
eign  within  their  spheres,  but  their  sovereignty  stops  short  of 
nationality.  Their  political  status  at  home  and  abroad  is  that  of 
States  in  the  United  States.  They  can  neither  make  war  nor  peace 
without  the  consent  of  the  national  government.  Neither  can  they, 
except  with  like  consent,  "enter  into  any  agreement  or  compact 
with  another  State."    Art.  1,  sec.  10,  cl.  3. 

But  it  is  said  that,  even  if  a  State,  as  sovereign  trustee  for  its 
citizens,  did  surrender  to  the  national  government  its  power  of 
prosecuting  the  claims  of  its  citizens  against  another  State  by 
force,  it  got  in  lieu  the  constitutional  right  of  suit  in  the  national 
courts. 

Under  the  Constitution  as  it  was  originally  con- 
strued, a  citizen  of  one  State  could  sue  another  State  in  the  courts  / 
of  the  United  States  for  himself  and  obtain  the  same  relief  his  ^ 
State  could  get  for  him  if  it  should  sue.  Certainly,  when  he  can 
sue  for  himself,  there  is  no  necessity  for  power  in  his  State  to  sue 
in  his  behalf,  and  we  cannot  believe  it  was  the  intention  of  the 
framers  of  the  Constitution  to  allow  both  remedies  in  such  a  case. 
Therefore,  the  special  remedy,  granted  to  the  citizen  himself,  must 
be  deemed  to  have  been  the  only  remedy  the  citizen  of  one  State 
could  have  under  the  Constitution  against  another  State  for  the 
redress  of  his  grievances,  except  such  as  the  delinquent  State  saw 
fit  itself  to  grant.  In  other  words,  the  giving  of  the  direct  remedy 
to  the  citizen  himself  was  equivalent  to  taking  away  any  indirect 


NEW  HAMPSHIRE  V.    LOUISIANA.  517 

remedy  he  might  otherwise  have  claimed,  through  the  interven- 
tion of  his  State,  upon  any  principle  of  the  law  of  nations.     It 
follows  that  when  the  amendment  took  away  the  special  remedy 
there  was  no  other  left.    Nothing  was  added  to  the  Constitution  by 
what  was  thus  done.    No  power  taken  away  by  the  grant  of  the 
special  remedy  was  restored  by  the  amendment.    The  effect  of  the 
amendment  was  simply  to  revoke  the  new  right  that  had  been 
given,  and  leave  the  limitations  to  stand  as  they  were.    In  the  argu- 
ment of  the  opinions  filed  by  the  several  justices  in  the  Chisholm 
case,  there  is  not  even  an  intimation  that  if  the  citizen  could  not 
sue  his  State  could  sue  for  him.     The  evident  purpose  of  the^ 
amendment,  so  promptly  proposed  and  finally  adopted,  was  to  pro-  / 
hibit  all  suits  against  a  State  by  or  for  citizens  of  other  States,  or/ 
aliens,  without  the  consent  of  the  State  to  be  sued,  and,  in  our  I 
opinion,  one  State  cannot  create  a  controversy  with  another  State,  ■ 
within  the  meaning  of  that  term  as  used  in  the  judicial  clauses  ofj 
the  Constitution,  by  assuming  the  prosecution  of  debts  owing  by 
the  other  State  to  its  citizens?    Such  being  the  case,  we  are  satis- 
fied that  we  are  prohibited,  both  by  the  letter  and  the  spirit  of  the 
Constitution,  from  entertaining  these  suits,  and 

The  hill  in  each  case  is  dismissed. 

A  citizen  may  not  sue  his  own  state  in  the  United  States  courts. 
Hans  V.  Louisiana,  134  U-  S.  1.  But  the  fact  that  a  state  owns  stock  in 
a  corporation  will  not  prevent  a  suit  by  an  individual  in  the  United 
States  courts  against  such  corporation.  United  States  Bank  v.  Planters 
Bank,  9  Wheaton  904;  Bank  of  Kentucky  v.  Wister,  2  Peters  318;  and 
a  state  may  sue  another  state  in  the  United  States  courts,  South  Da- 
kota V.  North  Carolina,  X92  U.  S.  286. 


V.    Liability  of  Local  CoRPORATioiirs. 

Olmstead  v.  Mayor,  42  N.  Y.  Superior  Court,  481;  Koch  v. 
Mayor,  152  N.  Y.  72;  Hadley  v.  Mayor,  33  N.  Y.  603;  Dolan  v. 
Mayor,  68  N.  Y.  274;  Wardlane  v.  Mayor,  137  N.  Y.  194; 
Gregory  v.  Mayor,  113  N.  Y.  416;  White  v.  Inhabitants  of  Levant, 
78  Me.  568 ;  County  of  Ijancaster  v.  Fulton,  128  Pa.  St.  48 ;  Fitz- 
simmons  v.  Brooklyn,  102  N.  Y.  536 ;  McCahon  v.  Commissioners, 
8  Kan.  437;  O'Leary  v.  Board,  93  N.  Y.  1  (supra);  all  cases  of 
liability  of  local  corporations  in  contract. 

See  also,  Lorillard  v.  Town  of  Monroe,  11  N.  Y.  392 ;  Wilcox  v. 
Chicago,  107  111.  334;  Hill  v.  Boston,  122  Mass.  344;' Detroit  v. 
Bladseby,  21  Mich.  84;  Hand  v.  Brookline,  126  Mass.  324,  all 
cases  of  the  liability  of  local  corporations  for  the  tortious  acts 
of  officers. 


CHAPTER  DC 

UABIUTY  OF  OFnCERS. 

I.    Criminal  Liability.* 
COMMONWEALTH  V.  COYLB. 

Supreme  Court  of  Pennsylvania,    1894. 
160  Pa.  St.  36. 

Opinion  by  Mr.  Justice  McCollum,  February  26,  1894. 

James  Coyle,  appellant,  Michael  Seavers  and  John  H.  Rhoads 
were  jointly  indicted  and  tried  for  neglect  of  their  duty  as  direc- 
tors of  the  poor  and  of  the  house  of  employment  for  Cumberland 
County.  A  verdict  of  guilty  was  rendered  by  the  jury,  sentence 
was  suspended  as  to  Seavers  and  Rhoads  on  their  payment  of  one- 
fourth  of  the  costs,  and  Coyle  was  sentenced  to  pay  a  fine  of  one 
hundred  dollars  and  three-fourths  of  the  cost.  The  pith  of  the 
complaint  against  them  was  that  they  neglected  to  discharge  a 
duty  which  in  their  official  capacity  they  owed  to  Joseph  N.  Dil- 
ler,  a  poor  and  infirm  child,  aged  seven  years,  who  was  a  legal 
charge  upon  the  county  of  Cumberland,  and  that  in  consequence 

of  their  neglect,  he  died It  is  manifest  from  the 

testimony  that  they  did  not  exercise  the  care  enjoined  by  the  law, 
and  that  they  were  negligent  in  binding  him  to  Lafferty,  and  in 
their  failure  to  institute  proceedings  to  cancel  the  indenture.  We 
need  not  repeat  or  discuss  the  testimony  descriptive  of  the  neglect 
and  cruelty  to  which  the  child  was  subjected.  It  is  sufficient  to 
say  of  it  that  in  our  opinion  it  fully  sustained  the  charges  made  in 

the  first  and  second  counts  of  the  indictment The 

counsel  for  the  Commonwealth  agree  with  the  counsel  for  the  de- 
fendants that  this  case  is  not  governed  by  the  statute  referred  to, 
but  the  former  maintain  and  the  latter  deny  that  the  matters 
charged  in  the  indictment  constitute  a  common  law  misdemeanor. 

We  think  the  contention  of  the  defendants  that  the  common  law 
does  not  hold  them  criminally  liable  for  a  wilful  neglect  or  refusal 
to  discharge  their  duties  as  directors  is  unsound.  In  Amer.  &  Eng. 
Ency.  of  Law,  vol.  19,  p.  504,  the  rule  on  this  subject  is  stated 
thus:    "The  neglect  or  failure  of  a  public  officer  to  perform  any 

^OfDcers  are  liable  as  private  Individuals  for  the  ordinary  crimes.  See, 
e.  g.,  State  v.  Dierberger,  90  Mo.  369,  supra. 

518 


/ 

■/' 
COMMONWEALTH  V,  COVLE.  519 

duty  which  by  law  he  is  required  to  perform  is  an  indictable 
offence  even  though  no  damage  was  caused  by  the  default,  and  a 
mistake  as  to  his  powers  or  with  relation  to  the  facts  of  the  case 
is  no  protection." 

In  Pennsylvania  overseers  of  the  poor  have  been 

indicted,  convicted,  and  sentenced  for  a  misdemeanor  in  office  in 
selling  the  keeping  of  paupers  by  public  vendue  or  outcry  to  the 
lowest  bidder;  9  Pa.  48-9. 

The  several  specifications  of  error  which  complain  of  the  admis- 
sion of  evidence  of  deprivation  and  cruelty  after  the  5th  of  Sep- 
tember, 1891,  and  of  the  denial  by  the  court  of  the  defendant's 
motion  to  strike  out  such  evidence,  are  not  sustained.  The  evi- 
dence referred  to  showed  a  continuance  of  the  ill  usage. 

We  are  not  able  to  discover  in  the  remaining  specifications  any- 
thing which  calls  for  the  reversal  of  the  judgment.  The  contention 
that  the  appellant  cannot  be  prosecuted  and  punished  for  misde- 
meanor in  office  because  his  term  has  expired,  is  not  supported  by 
reason  or  authority,  and  certainly  he  ought  not  to  complain,  that, 
while  he  was  liable  for  all  the  costs,  he  was  required  to  pay  only 
three-fourths  of  them. 

The  specifications  are  overruled  and  the  judgment  is  afHrmedj 

Officers  are  often  made  criminally  liable  by  statute.  For  an  In- 
stance of  such  a  liability  see  United  States  v.  Germaine,  99  U.  S.  508, 
supra. 

The  criminal  liability  of  officers  Is  often  difficult  of  enforcement, 
owing  to  the  powers  possessed  by  the  district  attorney  or  other  public 
prosecutor,  who  has  control  of  the  prosecution  of  all  crimes  including 
those  committed  by  public  officers.  Thus  it  is  the  usual  rule  that  coun- 
sel of  private  prosecutors  may  not  participate  in  the  prosecution  except 
with  the  consent  of  the  public  prosecutor.  In  State  v.  Kent,  4  North 
Dakota  577.  Sometimes,  however,  the  local  public  prosecutor  acts  under 
the  control  of  the  Attorney  General.  Cf.  State  v.  District  Court,  22 
Mon.  25. 

The  courts  exercise  a  control  over  officers  when  officers  have  to  re- 
sort to  them  to  punish  individuals  for  alleged  violations  of  laws  and  or- 
dinances. Instances  of  the  exercise  of  such  a  control  in  this  connec- 
tion are:  Overshiner  v.  State,  156  Ind.  187;  Ransom  v.  Black,  54  N.  J. 
L.  446;  State  v.  Ferguson,  33  N.  H.  424;  Morris  v.  City  of  Columbus, 
102  Ga.  792;  City  of  Chicago  v.  Quinby,  38  111.  274;  City  of  Clinton  v. 
Phillips,  58  111.  102;  Health  Department,  etc.  v.  Trinity  Church,  145 
N.  Y.  32. 


520  LIABILITY   OF  OFFICERS. 

II.    Civil  Liability  of  Officers 

A.      ON  CONTRACT. 

1.     Personal  Liability. 

BROWN  V.  BRADLEE. 

Supreme  Judicial  Court  of  Massachusetts.    February,  1892. 

156  Mass.  28. 

Contract  for  the  amount  of  a  reward. 

Holmes,  J.  This  is  an  action  to  recover  a  reward  which  was 
offered  in  writing  in  the  following  terms: 

*' $2,500  reward  will  be  paid  to  any  person  furnishing  evidence 
that  will  lead  to  the  arrest  and  conviction  of  the  person  who  shot 
Mr.  Edward  Cunningham,  November  21,  1889. 

**J.  Walter  Bradlee, 
T.  Edwin  Ruggles, 
J,  Albert  Simpson. 

Selectmen  of  Milton. 
MUton,  Nov.  22,  1889." 

The  main  questions  reserved  by  the  report  are  really  questions 
as  to  the  construction  of  this  instrument,  namely,  whether  the 
defendants  bound  themselves  personally  by  it,  and  what  evidence 
would  warrant  a  finding  that  the  conditions  of  the  offer  were  sat- 
isfied. 

On  the  first  question  we  are  of  opinion  that  the  defendants  are 
personally  liable.  No  doubt  the  instrument  would  bind  the  town 
if  made  with  authority  and  intent  to  bind  it.  Crawshaw  v.  Rox- 
bury,  7  Gray,  374.  Janvrin  v.  Exeter,  48  N.  H.  83.  But  the  same 
words  may  bind  two  parties;  the  agent,  because  in  their  literal 
sense  they  purport  to  bind  him ;  the  principal,  because  he  is  taken 
to  have  adopted  the  name  of  the  agent  as  his  own  for  the  purpose 
of  the  contract.  Byington  v.  Simpson,  134  Mass.  169.  Colder  v. 
Dobell,  L.  R.  6  C.  P.  486.  The  purport  of  the  words  used  in  this 
case  is  that  the  promise  contained  in  the  body  of  the  paper  is 
made  by  the  signer.  The  only  question  is,  Who  is  the  signer?  Do 
the  defendants,  by  adding  their  official  designation,  take  away  from 
their  names  their  ordinary  significance  as  proper  names,  and  make 
of  their  collective  signatures  a  composite  unit,  which  means  the 


K 


BROWN   V.    BRADLEE.  521 

town  of  Milton  and  nothing  else?  "We  think  not.  But  for  the 
words,  "Selectmen  of  Milton,"  the  promise  would  be  in  the  usual 
and  proper  form  for  a  personal  undertaking.  Wentworth  v.  Day, 
3  Met.  352 ;  Besse  v.  Dyer,  9  Allen,  151 ;  Lancaster  v.  Walsh,  4  M. 
&  W.  16 ;  Lockhart  v.  Barnard  14  M.  &  W.  674 ;  Thatcher  v.  Eng- 
land, 3  C.  B.  254;  Tamer  v.  Walker,  L.  R.  1  Q.  B.  641;  L.  R.  2  Q. 
B.  301.  If  it  contained  express  words  of  personal  promise,  and  the 
corporation  was  a  private  corporation,  or  the  agents  were  not 
public  officers,  the  mere  addition  of  their  office  would  not  exonerate 
them.  Simonds  v.  Heard,  23  Pick.  120,  125 ;  Fullam  v.  West  Brook- 
field,  9  Allen  1,  4 ;  Tucker  Manuf.  Co.  v.  Fairbanks,  98  Mass.  101, 
104.  The  only  argument  which  can  be  relied  on  for  a  different 
conclusion  here  is  that  the  defendants  were  public  officers,  and 
that  a  more  liberal  rule  prevails  with  regard  to  them.  It  has  been 
doubted  how  far  there  is  such  a  difference  with  regard  to  agents 
or  officers  of  a  town ;  Simonds  v.  Heard,  23  Pick.  120,  124 ;  Hall  v. 
Cockrell,  28  Ala.  507 ;  Providence  v.  Miller,  11  R.  I.  272 ;  and  these 
cases  show  very  plainly,  if  authority  for  the  proposition  is  needed, 
that  such  officers  will  bind  themselves  personally  if  they  purport 
to  do  so.  As  a  test  of  what  the  defendants  have  purported  to  do 
by  the  literal  meaning  of  their  words,  suppose  that  their  offer 
had  been  under  seal,  we  think  it  would  have  been  impossible  to 
say  that  the  only  meaning  of  the  signature  was  the  town  of  Mil- 
ton. See  Codding  v.  Mansfield,  7  Gray,  272,  273.  Perhaps  our 
conclusion  is  a  little  strengthened  by  the  consideration  that,  so  far 
as  appears,  the  defendants  had  not  authority  to  bind  the  town 
for  more  than  $500.  Pub.  Sts.  c.  212,  §  12.  For,  although,  of 
course,  an  agent  does  not  make  a  promise  his  own  by  exceeding 
his  authority,  if  it  purports  to  bind  his  principal  only  (Jefts  v. 
York,  4  Cush.  371)  still,  when  the  construction  is  doubtful,  the 
fact  that  he  has  no  authority  to  bind  the  supposed  principal  is 
a  reason  for  reading  his  words  as  directed  toward  himself.  Hall  v. 
Cockrell,  28  Ala.  507,  512. 

See  also  McCartle  v.  Bates,  29  Ohio  St.  419,  supra.  The  intention 
of  an  officer  to  make  himself  liable  must  be  clear.  Hodgson  v.  Dexter, 
1  Cranch,  345;  for  the  general  rule  is  that  the  officer  signing  a  public 
contract  does  not  bind  himself. 


522  LIABILITY  OF  OFFICERS. 


McCURDY  V.  ROGERS. 

Supreme  Court  of  Wisconsin.    June,  1886. 
21  Wisconsin  199. 

Downer,  J.  The  first  question  is:  Did  the  county  court  err  in 
instructing  the  jury  "that  if  they  found  from  the  evidence  that 
the  defendant,  as  chairman  of  the  board  of  supervisors  of  the 
town  of  Oshkosh,  agreed  to  pay  for  said  town  to  said  Lent  $300 
for  his  credit,  the  contract  was  not  binding  on  the  town,  and  the 
defendant  was  liable  therefor  personally?"  The  town  was  au- 
thorized by  law  to  pay  only  $200  bounty  to  each  volunteer;  and  if 
the  defendant,  as  agent  of  the  town,  promised  to  pay  more  than 
that  sum,  the  promise  was  not  binding  on  the  town.  The  principle 
of  the  instruction  is,  therefore,  that  an  agent  who  does  not  give  a 
cause  of  action  against  his  principal,  is  of  necessity  personally 
liable.  This  is  generally  so.  Is  it  so  in  all  cases  ?  Is  it  so  in  this  ? 
Was  there  sufficient  testimony  to  base  the  instruction  upon? 

It  was  held  in  Smout  v.  Ilbery,  10  Mees.  &  Wels.,  1,  that  where 
the  wife,  acting  as  agent  for  her  husband,  had  an  original  au- 
thority, which  had  been  revoked  by  the  death  of  the  husband, 
unknown  to  her,  she  was  not  liable  by  reason  of  making  a  void 
contract  in  his  name  after  his  death.  The  well  reasoned  opinion 
of  the  court  in  that  case  leads  to  the  conclusion,  that  to  make  any 
agent  personally  liable,  where  he  does  not  intend  to  be,  and  the 
credit  was  not  given  to  him,  there  must  be  some  wrong  or  omission 
of  right  on  his  part,  such  as  asserting  he  had  authority  when  he 
knew  or  ought  to  have  known  he  had  not,  or  a  failure  to  disclose 
fully  all  the  facts  within  his  knowledge.  To  the  same  effect  is 
Ogden  v.  Raymond,  22  Conn.  384.  See  also  Story  on  Agency,  §§ 
265,  287.  It  is  not  claimed  that  the  appellant  made  any  false 
representations  to  Lent,  or  practiced  any  deception  upon  him, 
unless  it  was  done  by  making  a  promise  in  the  name  of  the  town 
which  he  had  no  authority  to  make.  His  assuming  to  make  a 
contract  which  he  had  no  authority  to  make  would  ordinarily  in 
the  case  of  private  agents,  be  equivalent  to  a  representation  that 
he  had  authority  to  make  it.  But  not  so  in  this  case;  or  if  so,  its 
falsity  was  known  at  the  time  to  Lent.  For  the  authority  which 
the  town  had  was  by  virtue  of  a  general  statute  law,  which  both 
parties  alike  are  presumed  to  know.    A  representation  made  by  the 


M 'curdy  V.  ROGERS.  523 

defendant  to  Lent,  and  at  the  time  known  by  him  to  be  false,  of 
course  could  not  be  relied  on  by  him,  and  could  not  be  a  wrong  to 
the  injury  of  Lent.  The  complaint  is  in  assumpsit,  and  the  in- 
struction taken  in  connection  with  the  complaint,  assumes  or  is  to 
the  effect  that  if  the  defendant  promised  as  agent  for  and  in  the 
name  of  the  town,  and  promise  is  void  as  to  the  town  for  want  of 
authority  in  the  agent  to  make  it,  it  became  the  individual  prom- 
ise of  the  agent,  on  which  he  was  liable  in  this  action.  We  do  not 
see  on  principle  how  an  agent  can  be  liable  on  any  contract,  unless 
there  are  apt  words  to  charge  him;  or  how  a  promise  on  his  part 
can  be  implied,  unless  the  credit  was  given  to  him.  The  authorities 
are  somewhat  conflicting  as  to  the  liability  of  an  agent  in  actions 
ex  contractu;  but  the  weight  of  authority  we  think  is,  that  to 
charge  an  agent  in  such  an  action  the  credit  must  have  been  given 
to  him,  or  there  must  be  an  express  contract,  and  if  there  is  a  writ- 
ten contract  there  must  be  apt  words  in  it  to  charge  him.  See 
Story  on  Agency,  §  264a,  and  note ;  Ogden  v.  Baymond,  22  Conn., 
384,  and  authorities  there  cited.  If  there  are  not  apt  words  to 
charge  the  agent,  and  the  credit  is  not  given  to  him,  then  he  is 
liabel  only  in  an  action  ex  delicto. 

It  is  said  that  this  leads  or  may  lead  in  this  action  to  the  con- 
clusion that  no  one  is  liable ;  for  the  town  is  not.  This  may  be  so. 
But  we  do  not  think,  if  it  be  so,  that  it  affords  us  a  sufficient  ground 
for  holding  the  defendant  liable,  unless  his  acts  bring  him  within 
the  principles  we  herein  lay  down.  If  the  defendant  had  stipu- 
lated with  Lent  that  he  should  not  be  personally  liable,  it  is  clear 
that,  in  the  absence  of  fraud  on  his  part,  no  personal  liability  would 
rest  on  him. 

According  to  the  authorities  cited  by  the  appellant's  counsel,  if 
he  was  chairman  of  the  board  of  supervisors,  the  defendant  was  a 
public  agent.  The  law  raises  a  very  strong  presumption  against 
any  credit  being  given  to  a  public  agent  acting  within  the  scope 
of  his  authority.  Why  should  a  public  agent  in  such  a  case  be 
presumed  to  make  himself  personally  liable,  and  trust  to  the  gov- 
ernment for  remuneration,  rather  than  a  presumption  be  raised 
that  the  party  with  whom  he  is  dealing  was  to  trust  the  govern- 
ment? Both  know  the  government  is  not  bound;  and  if  the  party 
contracting  with  the  agent  desires  him  personally  to  be  bound,  it 
appears  to  us  not  unreasonable  that  he  should  so  expressly  stipu- 
late. 

The  instruction  was  erroneous;  because  the  defendant,  if  he 
acted  as  a  public  agent,  was  not  ex  necessitate  liable  by  reason  of 


524  LIABILITY  OP  OFFICERS. 

transcending  his  authority  under  the  circumstances  of  this  case, 
either  in  an  action  ex  contractu  or  ex  delicto. 

By  the  Court. — Judgment  of  the  county  court  reversed,  and  a 
venire  de  novo  awarded. 


2.    Contracts  Relative  to  O^ces. 

ROBERTSON  V.  ROBINSON. 

Supreme  Court  of  Alabama.    December,  1880. 
65  Alabama  610. 

Brickell,  C.  J All  agreements  or  contracts  having 

for  their  object  that  which  is  repugnant  to  public  justice,  or  vio- 
lative of  public  policy,  or  offensive  to  good  morals,  or  contrary  to 
statutory  provisions,  or  in  derogation  of  the  principles  of  the  com- 
mon law  relating  to  the  public  peace  or  security,  and  injurious  to 
the  community,  are  void:  "and  the  reason  why  the  common  law 
says  such  contracts  are  void,  is  for  the  public  good."  The  agree- 
ment between  Sewell  and  appellant,  it  is  insisted,  falls  within  this 
general  principle,  because,  in  fact,  it  was  a  sale  of  the  office  or 
employment  of  deputy  assessor  of  the  county  of  Montgomery. 
Whether  this  is  the  real  character  of  the  agreement,  and,  if  it  be, 
whether  it  is  offensive  to  law,  and  violative  of  public  policy,  re- 
quires that  the  whole  transaction  should  be  inquired  into  and 
considered.  The  form  of  the  agreement,  and  the  expressions  em- 
bodied in  the  writing  to  which  it  was  reduced  are  only  matters 
of  evidence,  not  operating  an  estoppel  upon  the  parties,  and  not 
embarrassing  or  hindering  the  court.  If  it  were  otherwise — if  the 
manner  of  the  transaction  could  gild  over  and  conceal  the  truth, 
this  great  conservative  principle  of  the  law,  essential  to  the  purity 
of  the  administration  of  justice,  of  public  morals,  and  of  the  gene- 
ral welfare,  would  be  evaded  at  the  pleasure  of  the  designing,  the 
wicked  and  the  corrupt. 

The  county  assessor  of  taxes  is  a  public  officer,  elected  by  the 
qualified  voters  of  the  county,  commissioned  by  the  governor,  re- 
quired to  take  the  oath  of  office  prescribed  by  the  constitution  to 
be  taken  by  all  public  officers,  the  highest  or  lowest,  and  charged 


ROBERTSON  V.  ROBINSON.  525 

with  duties  of  great  importance  to  the  public  and  to  the  citizen — 
duties  not  only  ministerial,  but  in  their  nature  in  some  respects, 
judicial.  He  has  authority  to  appoint  deputies,  whose  acts  have 
the  force  and  effect  of  his  official  acts,  and  for  whose  good  con- 
duct he  is  responsible.— Code  of  1876,  §  397.  The  deputy  appointed 
by  him,  not  for  a  mere  particular  case,  or  for  a  mere  casual,  spe- 
cial service,  is  required  to  take  the  constitutional  oath  of  office. 
The  statute  authorizing  his  appointment,  requiring  him  to  take 
the  oath  of  office,  distinguishing  between  him  and  one  whom  the 
assessor  may  appoint  to  a  special  service,  places  him,  in  many 
respects  as  a  public  officer. 

The  transaction  between  Sewell  and  the  appellant  had  its  origin 
on  the  day  of,  and  pending  the  election  of  tax-assessor  for  the 
county  of  Montgomery,  in  November,  1874.  It  commenced  by  a 
proposition  made  by  Sewell  to  the  appellant,  in  substance,  that  if 
Sewell,  who  was  a  candidate  for  tax-assessor,  was  successful,  he 
would  appoint  the  appellant  his  chief  deputy,  and  pay  him  from 
the  fees  and  perquisites  of  the  office  twenty-five  hundred  dollars 
annually,  if  the  appellant  would  make  for  him  his  official  bohd, 
and  perform  all  the  duties  of  the  office,  except  such  as  related  to 
the  assessment  of  the  poll-tax.  The  proposition  was  accepted,  and 
it  is  this  agreement  the  subsequent  writing  was  intended  to  em- 
body, and  which  the  parties  treated  as  embodying. 

Of  such  an  agreement  in  the  strong  language  of  Chief  Justice 
WiLMOT,  in  Collins  v.  Blantern,  2  Wils.  241  (1  Smith's  L.  C.  Pt. 
2,  673),  it  may  be  said,  that  it  **is  void  ab  initio,  by  the  common 
law,  by  the  civil  law,  moral  law,  and  all  laws  whatever."  It  con- 
cerns a  place  of  public  trust,  in  which  the  public  have  high  inter- 
ests, involving  the  performance  of  public  duties,  and  which  cannot 
be  made  the  subject  of  traffic,  and  can  not  become  the  matter  of 
trade  and  bargaining.  It  was  corrupting  the  appellant  as  a  voter, 
bound  by  his  duty  to  cast  his  vote  from  public,  not  private  con- 
siderations, on  the  eve  of  the  election  to  make  such  a  proposition ; 
tempting  him  to  merge  his  duty  as  a  citizen  in  the  promptings  of 
mere  selfishness,  in  the  gratification  of  his  avarice.  It  was  bar- 
gaining away  the  discretion  in  the  appointment  of  a  deputy  which 
Sewell  was  bound  to  exercise  for  the  public  good,  and  not  for  the 
promotion  of  his  private  interest  or  convenience.  It  was  an  irre- 
vocable appointment,  continuing  during  the  term  of  office,  which 
was  contemplated,  fettering  the  power  of  appointment  with  which 
Sewell  was  clothed  by  law.  In  fact,  it  was  a  sale  of  the  office  of 
deputy,  and  the  consideration  was  not  only  the  service  the  appel- 


526  LIABILITY   OF   OFFICBES. 

lant  was  expected  to  render,  but  the  making  of  the  official  bond. 
The  people  of  Montgomery  county,  trusting  to  the  integrity  and 
good  judgment  of  Sewell,  elected  him  to  the  office  of  assessor  of 
taxes.  Their  confidence  was  repaid  by  his  transfer  to  the  appellant 
of  every  duty  not  merely  ministerial,  attaching  to  the  office,  in 
consideration  really  of  ease  and  convenience  in  making  the  official 
bond.  It  would  be  far  better  that  public  trusts,  public  offices,  or 
the  deputations  to  them,  should  be  exposed  at  public  auction  to 
the  highest,  or  to  the  lowest  bidder,  than  that  they  should  become 
the  subject  of  such  private  bargaining  and  traffic.  We  cite  nu- 
merous authorities,  which  it  is  unnecessary  to  review  specially,  and 
in  which  the  bargaining  away  of  public  offices,  or  of  deputations  to 
them,  have  been  pronounced  void. — 2  Chit.  Contr.  990;  1  Addison 
Contr.  262,  266;  Hanington  v.  Duchatell,  1  Brown's  C.  C.  124; 
Morris  v.  McCulloch,  Ambler,  455 ;  Lee  v.  Coleshill,  Cro.  Eliz.  529 ; 
Garforth  v.  Fearon,  1  H.  Black,  328 ;  Qodolphin  v.  Tudor,  2  Salk. 
468;  GreenvUle  v.  Atkins,  9  B.  &  C.  462;  Tappan  v.  Brown,  9 
Wend.  175 ;  Gray  v.  Hook,  4  Conn.  449 ;  Haralson  v.  Dickens  N.  C, 
L.  R.  66;  Grant  v.  McLester,  8  Geo.  553;  Lewis  v.  Knox,  2  Bibb. 
453 ;  Outon  v.  Bodes,  3  A.  K.  Marsh,  453. 

No  judicial  tribunal,  so  far  as  we  can  discover,  has  ever  given  ^ 
countenance  to  any  such  agreement;  and  if  popular  elections  are 
to  be  kept  free  from  the  taint  of  selfishness  and  corruption — if  pub-^ 
lie  offices  are  to  be  dignified  as  public  trusts,  and  the  performance 
of  official  duty  preserved  from  the  contamination  of  unlawful  and 
improper  influences,  all  such  agreements  will  be  condemned. 

The  validity  of  the  agreement  was  the  only  question  presented 
to,  and  decided  by  the  City  Court,  and  the  manner  of  presenting 
it  was  a  matter  of  agreement  between  the  parties.  The  court  did 
not  err  in  pronouncing  the  agreement  void,  and  its  judgment  is 

Affirmed. 


STOUT  V.  ENNIS. 

Supreme  Court  of  Kansas.    July,  1882. 
28  Kansas  706. 

December  12,  1881,  the  plaintiff  filed  the  following  petition  in 
the  district  court  of  Harvey  county,  to  wit: 

"The  plaintiff,  B.  F.  Stout,  complains  of  the  defendant,  H.  Li. 
Ennis,  and  for  cause  of  action  says : 

"That  during  the  year  1878,  the  plaintiff  was  auditor  of  the 


STOUT   V.   ENNIS.  527 

county  of  Henry,  in  the  state  of  Ohio;  that  the  defendant  was  a 
candidate  in  the  democratic  party  for  the  nomination  for  that 
office,  and  that  the  defendant  then  and  there  agreed  that  if  the 
plaintiff  would  support  him  for  the  nomination  and  not  be  a  can- 
didate for  the  same  office  himself,  he,  the  said  defendant,  would, 
if  nominated  and  elected,  to  the  said  office,  employ  this  plaintiff 
as  his  deputy  and  clerk  during  the  term  of  said  office. 

* '  That  the  defendant  was  nominated  and  elected,  and  duly  quali- 
fied as  said  auditor,  and  did  thereupon  enter  into  and  make  a 
contract  with  the  plaintiff  by  the  terms  of  which  he,  agreed  to  make 
this  plaintiff  his  deputy  and  clerk  for  the  term^  three  years,  for 
which  he  promised  and  agreed  to  pay  the  plaintiff  one-half  of  the 
net  salary  and  fees  of  said  office. 

''That  afterwards,  to  wit,  on  the  day  of  ,  1878, 

the  defendant  being  desirous  of  rescinding  his  said  contract,  pro- 
posed to  this  plaintiff  that  if  he,  plaintiff,  would  agree  to  and 
would  rescind  said  contract,  he  the  defendant,  would  pay  him  the 
sum  of  $700  as  stipulated  damages,  at  the  time  and  in  the  manner 
following,  to  wit:  $100  November  20,  1879;  $200  November  20, 
1880 ;  and  $400  November  20,  1881.  The  plaintiff  thereupon  and 
in  consideration  of  said  sum  of  $700  so  as  aforesaid  to  be  paid, 
agreed  to  and  did  rescind  said  contract;  and  that  thereupon  the 
defendant  executed  and  delivered  to  L.  L.  Orwig,  as  trustee  for 
this  plaintiff,  the  following  instrument  in  writing,  to  wit: 

'*  'For  a  valuable  consideration,  I  hereby  agree  to  pay  L.  L. 
Orwig,  for  the  benefit  of  B.  F.  Stout,  $700,  as  follows:  $100  in 
one  year  from  date;  $200  two  years  from  date;  $400  three  years 
from  date,  and  the  last  specified  sum  to  bear  interest  at  the  rate  of 
six  per  cent,  per  annum  from  date. 

"  'This  agreement  to  be  void  at  the  death  of  either  Stout  or 
Ennis. 

"  'November  20,  1878.— Napoleon,  Ohio.  H.  L.  Ennis.' 

"That  a  copy  of  said  contract  is  hereto  attached,  marked 
'Exhibit  A,'  showing  the  erasures  thereon;  that  defendant  has 
made  the  following  payments  on  the  same,  to  wit,  $100  one  year 
from  date,  $200  two  years  from  date.  That  said  payments  were 
made  when  due,  and  the  defendant  obliterated  the  words  at  the 
times  of  making  payments  by  various  marks  made  thereon  by  him 
with  pen  and  ink. 

"That  defendant,  though  often  requested,  has  refused  and  still 
refuses  to  pay  the  said  sum  of  $400,  last  due  as  above  set  forth,  or 
any  part  thereof. 


528  LIABILITY   OF   OPPICEBS. 

"That  plaintiff  and  defendant  were  at  the  times  herein  referred 
to  both  members  of  the  same  political  party,  and  in  every  way  fully 
qualified  to  perform  the  duties  of  the  office  of  auditor. 

"That  by  reason  of  the  foregoing  plaintiff  is  entitled  to  recover 
of  the  defendant  the  said  sum  of  $400,  with  interest  thereon  at  six 
per  cent,  per  annum  from  the  20th  day  of  November,  1878, 

"Wherefore  plaintiff,  B.  F.  Stout,  prays  judgment  against  said 
defendant,  H.  L.  Ennis,  for  the  sum  of  $400,  and  interest  thereon 
at  six  per  cent,  per  annum  from  November  20,  1878,  and  for  costs 
of  this  action." 

The  defendant  demurred  to  this  petition,  upon  the  ground  that 
it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action,  and 
the  court  below  sustained  the  demurrer  and  rendered  judgment  for 
costs  against  the  plaintiff;  and  to  reverse  such  ruling  and  judg- 
ment, the  plaintiff  has  filed  his  petition  in  error  in  this  court. 

Valentine,  J.  This  action  was  brought  by  B.  F.  Stout  against 
H.  L.  Ennis,  to  recover  the  sum  of  $400,  alleged  to  be  due  on  the 
following  instrument  in  writing,  to  wit: 

"For  a  valuable  consideration,  I  hereby  agree  to  pay  to  L.  L. 
Orwig,  for  the  benefit  of  B.  F.  Stout,  $700  as  follows:  $100  one 
year  from  date;  $200  two  years  from  date;  $400  three  years  from 
date,  and  the  last  specified  sum  to  bear  interest  at  the  rate  of  six 
per  cent,  per  annum  from  date. 

This  agreement  to  be  void  at  the  death  of  either  Stout  or  Ennis. — 
November  20,  1878.— Napoleon,  Ohio. 

H.  L.  Ennis." 

The  sole  question  involved  in  this  case  is,  whether  this  instru- 
ment in  writing  is  valid  or  not.  Prima  facie,  it  is  legal  and  valid, 
and  founded  upon  a  sufficient  consideration;  and  before  we  can 
hold  that  it  is  illegal  or  invalid  or  not  founded  upon  a  sufficient 
consideration,  its  illegality  or  invalidity  or  insufficiency  of  con- 
sideration must  be  made  to  affirmatively  appear  by  something  out- 
side of  the  instrument  itself,  something  extrinsic  thereto.  Is  there 
anything  in  the  case  showing  affirmatively  that  this  instrument  is 
not  legal,  or  not  valid,  or  not  founded  upon  a  sufficient  considera- 
tion? 

It  appears  from  the  petition  in  the  case  that  the  plaintiff  and 
defendant  entered  into  three  separate  contracts,  at  three  different 
times.  The  first  contract  was,  in  substance,  that  if  the  plaintiff 
would  support  the  defendant  for  nomination  and  election  to  the 
office  of  auditor  of  Henry  county,  Ohio,  that  the  defendant  would, 


STOUT  V.   ENNIS.  52d 

if  nominated  and  elected  to  such  office,  employ  the  plaintiff  as  his 
deputy  during  the  term  of  such  office.  Such  a  contract  was  of 
course  illegal  and  void,  being  in  contravention  of  public  policy. 

The  second  contract  was  made  after  the  election,  and  after  the 
defendant  had  been  both  nominated  and  elected  to  such  office. 
This  contract  was,  in  substance,  that  the  defendant  would  employ 
the  plaintiff  as  his  deputy  for  the  term  of  three  years,  and  would 
pay  to  the  plaintiff  for  his  services  one-half  of  the  net  salary  and 
fees  of  the  office.  Now  this  contract  is  not  necessarily  illegal  or 
void.  It  was  not  a  sale  or  a  ''farming"  of  the  office  within  the 
meaning  of  the  decision  of  the  case  of  Outon  v.  Bodes,  3  A,  K. 
Marshall  (Ky.),  432;  13  Am.  Dec.  193.  There  is  no  pretense  that 
the  defendant  was  to  abandon  the  office,  or  to  give  it  up  to  the 
plaintiff.  The  contract  was  simply  an  agreement  to  employ  the 
plaintiff  as  a  deputy,  and  to  give  him  a  portion  of  the  fees  and 
salary  as  compensation.  The  defendant  would  of  course  still  re- 
tain the  possession  and  control  of  the  office,  and  the  plaintiff  would 
have  nothing  to  do  but  to  perform  the  ordinary  duties  of  a  deputy. 
There  is  nothing  inhering  in  the  contract  itself  that  would  render 
it  illegal  or  void.  The  defendant,  however,  claims  it  is  void  for 
two  reasons:  First,  that  it  is  founded  upon  the  original  and  ille- 
gal contract  made  prior  to  the  defendant 's  nomination  and  election ; 
and  second,  that  it  is  void  on  account  of  the  sixth  section  of  the 
statute  for  the  prevention  of  frauds  and  perjuries.  (Comp.  Laws 
of  1879,  p.  464,  sec.  6).  Now  it  is  not  shown  that  the  second  con- 
tract was  founded  upon  the  first  illegal  contract,  nor  is  it  shown 
that  it  has  any  necessary  connection  therewith.  It  is  not  even 
shown  that  one  was  the  inducement  for  the  other.  Each  might 
have  a  separate  and  independent  existence,  and  either  might  exist 
if  the  other  had  never  been  made.  We  do  not  think  that  the  first 
necessarily  vitiates  the  second;  and  it  is  certainly  not  shown  that 
the  first  has  such  a  necessary  connection  with  the  second  as  to 
vitiate  it. 

As  to  the  question  with  reference  to  the  statute  of  frauds  and 
perjuries,  we  would  say,  that  this  contract  was  made  in  Ohio,  and 
not  in  Kansas;  and  it  is  not  shown  what  the  provisions  of  the 
statutes  regarding  this  subject  are  in  Ohio.  Of  course,  the  stat- 
utes of  Kansas  cannot  vitiate  a  contract  made  in  Ohio.  The  con- 
tract may  have  been  valid  in  Ohio,  notwithstanding  the  statutes  of 
Kansas.  But  suppose  they  have  the  same  kind  of  statutes  in  Ohio 
for  the  government  of  this  class  of  cases  as  we  have  in  Kansas; 
then  will  the  statutes  in  either  state,  or  in  both  combined,  render 
34 


530  LIABILITY  OP  OFFICERS. 

this  second  contract  void  ?  We  think  not.  The  statute  referred  to 
by  the  defendant  does  not  purport  to  render  such  contracts  void. 
The  statute,  so  far  as  it  may  be  supposed  to  have  any  application 
to  this  case,  provides  that  "no  action  shall  be  brought  whereby  to 
charge  a  party  ....  upon  any  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the  making  thereof, 
unless  the  agreement  upon  which  such  action  shall  be  brought,  pr 
some  memorandum  or  note  thereof,  shall  be  in  writing,  and  signed 
by  the  party  to  be  charged  therewith,  or  some  other  person  there- 
unto by  him  or  her  lawfully  authorized." 

It  is  claimed  that  this  second  contract  is  void  because  it  was  not 
to  be  performed  within  one  year,  and  was  [not]  in  writing.  Now 
there  is  nothing  appearing  in  the  case  that  shows  that  it  was  not 
in  writing;  and,  as  we  have  before  stated,  unless  it  be  made  to 
affirmatively  appear  that  the  contract  sued  on  was  illegal  or  void 
(it  being  prima  facie  valid),  the  contract  sued  on  cannot  be  held 
to  be  void.  Besides,  when  a  contract  is  pleaded,  it  will  usually 
be  held  to  be  valid,  unless  it  affirmatively  appears  on  the  face  of 
the  contract,  or  by  allegations  in  the  pleading,  to  be  invalid.  But, 
as  we  have  said  before,  the  statute  does  not  attempt  to  make  the 
second  contract  either  illegal  or  void,  even  if  it  was  not  to  be  per- 
formed within  one  year  and  was  not  in  writing.  All  that  the  stat- 
ute attempts  with  reference  to  this  subject,  is  simply  to  enact  that 
no  such  action  shall  be  brought  on  such  a  contract.  The  statute 
leaves  the  contract  valid  for  all  other  purposes,  unless  it  is  void 
for  some  other  reason  than  merely  that  it  is  not  to  be  performed 
within  one  year  and  is  not  in  writing.  {McCampbell  v.  McCamp- 
hell,  5  Littell  (Ky.)  92).  Such  a  contract  is  valid  for  all  purposes 
except  for  the  mere  purpose  of  suing  thereon.  It  is  valid,  for 
instance,  as  a  consideration  for  some  other  contract.  Now  in  the 
present  case  the  plaintiff  did  not  sue  upon  this  second  contract. 
He  sued  upon  the  third  contract  which  was  * '  in  writing,  and  signed 
by  the  party  to  be  charged  therewith."  It  will  be  seen  that  the 
statute  of  frauds  and  perjuries  has  really  nothing  to  do  with  this 
case. 

The  third  contract,  and  the  one  sued  upon  in  this  case,  appears 
to  be  valid  in  every  respect,  and,  as  we  think,  there  is  nothing 
outside  of  it  and  nothing  in  the  record  showing  it  to  be  invalid. 
It  is  true  that  the  rescission  of  the  second  contract  is  the  founda- 
tion, the  basis,  and  the  consideration  for  the  third  contract;  but 
while  it  is  possible  that  the  second  contract  is  void  for  the  purpose 
of  commencing  an  action  upon  it,  yet  it  is  valid  for  the  purpose 


SOUTH  V.   STATE   OP   MARYLAND.  531 

of  making  it  a  consideration  for  the  third  contract.  The  third 
contract,  we  think,  is  valid — or  at  least  it  is  prima  facie  valid ;  and 
there  being  nothing  in  the  case  showing  it  to  be  void,  it  must  be 
held  to  be  valid.  The  authorities  will  be  found  cited  in  the  briefs 
of  counsel. 

The  judgment  of  the  court  below  will  be  reversed,  and  cause 
rememded  for  further  proceedings. 

All  the  justices  concurring. 


B.      IN  TOET. 

1.    Liability  for  Duties  Oived  Only  to  Public. 

SOUTH  ET  AL.  V.  STATE  OF  MARYLAND. 

Supreme  Court  of  the  United  States.    December,  1855. 
18  How.  396. 

Mr.  Justice  Grier  delivered  the  opinion  of  the  court. 

In  this  case  a  judgment  was  rendered  for  the  plaintiff  in  the 
court  below,  and  the  defendant  moved,  in  arrest  of  judgment,  "that 
the  matters  set  out  in  the  declaration  of  the  plaintiff  are  not  suf- 
ficient, in  law,  to  support  the  action."  If  it  be  found  that  the 
court  erred  in  overruling  this  motion  and  in  entering  judgment 
on  the  verdict,  a  consideration  of  the  other  points  raised  on  the 
trial  will  be  unnecessary. 

The  action  is  brought  on  the  official  bond  of  South,  as  sheriff 
of  Washington  county.  The  declaration  sets  forth  the  condition 
of  the  bond  at  length.  The  breach  alleged  is,  in  substance,  ''that 
while  Pottle  was  engaged  about  his  lawful  business,  certain  evil- 
disposed  persons  came  about  him,  hindered  and  prevented  him, 
threatened  his  life,  with  force  of  arms  demanded  of  him  a  large 
sum  of  money,  and  imprisoned  and  detained  him  for  the  space 
of  four  days,  and  until  he  paid  them  the  sum  of  $2,500  for  his 
enlargement." 

That  South,  the  sheriff,  being  present,  the  plaintiff.  Pottle,  ap- 
plied to  him  for  protection,  .and  requested  him  to  keep  the  peace 
of  the  state  of  Maryland,  he,  the  said  sheriff,  having  power  and 
authority  so  to  do.  That  the  sheriff  neglected  and  refused  to  pro- 
tect and  defend  the  plaintiff,  and  to  keep  the  peace,  wherefore,  it 
is  charged  **the  sheriff  did  not  well  and  truly  execute  and  perform 


632  LIABILITY  OF  OFFICERS. 

the  duties  required  of  him  by  the  laws  of  said  state;"  and  thereby 
the  said  writing  obligatory  became  forfeited,  and  action  accrued 
to  the  plaintiff. 

This  declaration  does  not  charge  the  sheriff  with  a  breach  of 
his  duty  in  the  execution  of  any  writ  or  process  in  which  Pottle, 
the  real  plaintiff  in  this  case,  was  personally  interested,  but  a 
neglect  or  refusal  to  preserve  the  public  peace,  in  consequence  of 
which  the  plaintiff  suffered  great  wrong  and  injury  from  the  un- 
lawful violence  of  a  mob.  It  assumes  as  a  postulate,  that  every 
breach  or  neglect  of  a  duty  subjects  the  officer  to  a  civil  suit  by 
any  individual  who,  in  consequence  thereof,  has  suffered  loss  or 
injury;  and  consequently,  that  the  sheriff  and  his  sureties  are 
liable  to  this  suit  on  his  bond,  because  he  has  not  "executed  and 
performed  all  the  duties  required  of  and  imposed  on  him  by  the 
laws  of  the  state. ' ' 

The  powers  and  duties  of  the  sheriff  are  usually  arranged  under 
four  distinct  classes : 

1.  In  his  judicial  capacity  he  formerly  held  the  sheriff's  toum, 
or  county  courts,  and  performed  other  functions  which  need  not 
be  enumerated. 

2.  As  king's  bailiff,  he  seized  to  the  king's  use  all  escheats,  for- 
feitures, waifs,  wrecks,  estrays,  etc. 

3.  As  conservator  of  the  peace  in  his  county  or  bailiwick,  he 
is  the  representative  of  the  king,  or  sovereign  power  of  the  state 
for  that  purpose.  He  has  the  care  of  the  county,  and,  though  for- 
bidden by  magna  charta  to  act  as  a  justice  of  the  peace  in  trial  of 
criminal  cases,  he  exercises  all  the  authority  of  that  office  where 
the  public  peace  was  concerned.  He  may  upon  view,  without  writ 
or  process,  commit  to  prison  all  persons  who  break  the  peace  or 
attempt  to  break  it ;  he  may  award  process  of  the  peace,  and  bind 
anyone  in  recognizance  to  keep  it.  He  is  bound,  ex  officio,  to  pur- 
sue and  take  all  traitors,  murderers,  felons,  and  other  misdoers, 
and  commit  them  to  jail  for  safe  custody.  For  these  purposes  he 
may  command  the  posse  comitatus  or  power  of  the  county;  and 
this  summons,  every  one  over  the  age  of  fifteen  years  is  bound  to 
obey,  under  pain  of  fine  and  imprisonment. 

4.  In  his  ministerial  capacity  he  is  bound  to  execute  all  proces- 
ses issuing  from  the  courts  of  justice.  He  is  keeper  of  the  county 
jail,  and  answerable  for  the  safe-keeping  of  prisoners.  He  sum- 
mons and  returns  juries,  arrests,  imprisons,  and  executes  the  sen- 
tence of  the  court,  etc.,  etc.  1  Black.  Com.  343 ;  2  Hawk.  P.  C.  C. 
8,  S  4,  etc.,  etc. 


SOUTH  V.  STATE  OF  MABYLAND.  533 

Originally  the  office  of  sheriff  could  be  held  by  none  but  men  of 
large  estate,  who  were  able  to  support  the  retinue  of  followers  which 
the  dignity  of  his  office  required,  and  to  answer  in  damages  to 
those  who  were  injured  by  his  neglect  of  duty  in  the  performance 
of  his  ministerial  functions.  In  more  modern  times,  a  bond  with 
sureties  supplies  the  place  of  personal  wealth.  The  object  of  these 
bonds  is  security,  not  the  imposition  of  liabilities  upon  the  sheriff, 
to  which  he  was  not  subject  at  common  law.  The  specific  enumera- 
tion of  duties  in  the  bond  in  this  case  includes  none  but  those 
that  are  classed  as  ministerial.  The  general  expression,  in  con- 
clusion, should  be  construed  to  include  only  such  other  duties  of 
the  same  kind  as  were  not  specially  enumerated.  To  entitle  a  citi- 
zen to  sue  on  this  bond  to  his  own  use,  he  must  show  such  a  default 
as  would  entitle  him  to  recover  against  the  sheriff  in  an  action  on 
the  case.  When  the  sheriff  is  punishable  by  indictment  as  for  a 
misdemeanor,  in  cases  of  a  breach  of  some  public  duty,  his  sureties 
are  not  bound  to  suffer  in  his  place,  or  to  indemnify  individuals 
for  the  consequences  of  such  a  criminal  neglect. 

It  is  an  undisputed  principle  of  the  common  law,  that  for  a 
breach  of  a  public  duty,  an  officer  is  punishable  by  indictment; 
but  where  he  acts  ministerially,  and  is  bound  to  render  certain 
services  to  individuals,  for  a  compensation  in  fees  or  salary,  he  is 
liable  for  acts  of  misfeasance  or  nonfeasance  to  the  party  who  is 
injured  by  them. 

The  powers  and  duty  of  conservator  of  the  peace  exercised  by 
the  sheriffs  are  not  strictly  judicial ;  but  he  may  be  said  to  act  as 
the  chief  magistrate  of  his  county,  wielding  the  executive  power  for 
the  preservation  of  the  public  peace.  It  is  a  public  duty,  for  neg- 
lect of  which  he  is  amenable  to  the  public,  and  punishable  by  in- 
dictment only. 

The  history  of  the  law  for  centuries  proves  this  to  be  the  case. 
Actions  against  the  sheriff  for  breach  of  his  ministerial  duties  in 
the  execution  of  process  are  to  be  found  in  almost  every  book  of 
reports.  But  no  instance  can  be  found  where  a  civil  action  has 
been  sustained  against  him  for  his  default  or  misbehavior  as  con- 
servator of  the  peace,  by  those  who  have  suffered  injury  to  their 
property  or  persons  through  the  violence  of  mobs,  riots  or  insurrec- 
tions. 

In  the  case  of  Entich  v.  Carrington,  State  Trials,  vol.  19,  page 
1062,  Lord  Camden  remarks:  '*No  man  ever  heard  of  an  action 
against  a  conservator  of  the  peace  as  such. ' ' 

The  case  of  Ashby  v.  White,.  2  Lord  Raym.  938,  has  been  often 


534  LIABILITY  OF  OFFICERS. 

quoted  to  show  that  a  sheriff  may  be  liable  to  a  civil  action  where 
he  has  acted  iu  a  judicial,  rather  than  a  ministerial  capacity.  This 
was  an  action  brought  by  a  citizen  entitled  to  vote  for  member  of 
parliament,  against  the  sheriff  for  refusing  his  vote  at  an  election. 
Gould,  justice,  thought  the  action  would  not  lie,  because  the  sheriff 
acted  as  a  judge.  Powis,  because,  though  not  strictly  a  judge,  he 
acted  qimsi  judicially.  But  Holt,  C.  J.,  decided  that  the  action 
would  lie:  1.  "Because  the  plaintiff  had  a  right  or  privilege. 
2.  That,  by  the  act  of  the  officer,  he  was  hindered  from  the  enjoy- 
ment of  it."  3.  By  the  finding  of  the  jury  the  act  was  done  ma- 
liciously. The  later  cases  all  concur  in  the  doctrine  that  where 
the  officer  is  held  liable  to  a  civil  action  for  acts  not  simply  minis- 
terial, the  plaintiff  must  allege  and  prove  each  of  these  proposi- 
tions. See  Cullen  v.  Morris,  2  Starkie,  N.  P.  C. ;  Harman  v.  Tap- 
penden,  1  East,  555,  etc. 

The  declaration  in  the  case  before  us  is  clearly  not  within  the 
principles  of  these  decisions.  It  alleges  no  special  indi^adual  right, 
privilege  or  franchise  in  the  plaintiff,  from  the  enjoyment  of 
which  he  has  been  restrained  or  hindered  by  the  malicious  act  of 
the  sheriff;  nor  does  it  charge  him  with  any  misfeasance  or  non- 
feasance in  his  ministerial  capacity,  in  the  execution  of  any  process 
in  which  the  plaintiff  was  concerned.  Consequently  we  are  of 
opinion  that  the  declaration  sets  forth  no  sufficient  cause  of  action. 

The  judgment  of  the  circuit  court  is  therefore  reversed. 


2.    Liability  of  Officers  not  Ministerial. 

BRADLEY  V.  FISHER. 

Supreme  Court  of  the  United  States.    December,  1871. 
13  Wall.  335. 

This  was  an  action  brought  by  Joseph  H.  Bradley,  who  was,  in 
1867,  an  attorney-at-law,  practicing  in  the  Supreme  Court  of  the 
District  of  Columbia,  against  George  P.  Fisher,  who  was  then  one 
of  the  justices  of  that  court,  to  recover  damages  alleged  to  have 
been  sustained  by  the  plaintiff  "by  reason  of  the  wilful,  malicious, 
oppressive  and  tyrannical  acts  and  conduct"  of  the  defendant, 
whereby  the  plaintiff  was  deprived  of  his  right  to  practice  as  an 
attorney  in  that  court. 


BRADLEY  V.  FISHER.  535 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

In  1867  the  plaintiff  was  a  member  of  the  bar  of  the  Supreme 
Court  of  the  District  of  Columbia,  and  the  defendant  was  one  of 
the  justices  of  that  court.  In  June,  of  that  year,  the  trial  of  one 
John  H.  Suratt,  for  the  murder  of  Abraham  Lincoln,  was  com- 
menced in  the  Criminal  Court  of  the  District,  and  was  continued 
until  the  tenth  of  the  following  August,  when  the  jury  were  dis- 
charged in  consequence  of  their  inability  to  agree  upon  a  verdict. 
The  defendant  held  that  court,  presiding  at  the  trial  of  Suratt 
from  its  commencement  to  its  close,  and  the  plaintiff  was  one  of  the 
attorneys  who  defended  the  prisoner.  Immediately  upon  the  dis- 
charge of  the  jury,  the  court,  thus  held  by  the  defendant,  directed 
an  order  to  be  entered  on  its  records  striking  the  name  of  the 
plaintiff  from  the  roll  of  attorneys  practicing  in  that  court.  The 
order  was  accompanied  by  a  recital  that  on  the  second  of  July 
preceding,  during  the  progress  of  the  trial  of  Suratt,  immediately 
after  the  court  had  taken  a  recess  for  the  day,  as  the  presiding 
judge  was  descending  from  the  bench,  he  had  been  accosted  in  a 
rude  and  insulting  manner  by  the  plaintiff,  charging  him  with 
having  offered  the  plaintiff  a  series  of  insults  from  the  bench  from 
the  commencement  of  the  trial ;  that  the  judge  had  then  disclaimed 
any  intention  of  passing  any  insult  whatever,  and  had  assured  the 
plaintiff  that  he  entertained  for  him  no  other  feelings  than  those 
of  respect,  but  that  the  plaintiff,  so  far  from  accepting  this  ex- 
planation, or  disclaimer,  had  threatened  the  judge  with  personal 
chastisement. 

The  plea,  as  will  be  seen  from  'our  statement  of  it,  .  .  .  . 
sets  up  that  the  order  for  the  entry  of  which  the  suit  is  brought, 
was  a  judicial  act  done  by  the  defendant  as  the  presiding  justice 
of  a  court  of  general  criminal  jurisdiction.  If  such  were  the  char- 
acter of  the  act,  and  the  jurisdiction  of  the  court,  the  defendant 
cannot  be  subjected  to  responsibility  for  it  in  a  civil  action,  how- 
ever erroneous  the  act  may  have  been,  and  however  injurious  in 
its  consequences  it  may  have  proved  to  the  plaintiff.  For  it  is  a 
general  principle  of  the  highest  importance  to  the  proper  adminis- 
tration of  justice  that  a  judicial  officer,  in  exercising  the  authority 
vested  in  him,  shall  be  free  to  act  upon  his  own  convictions,  with- 
out apprehension  of  personal  consequences  to  himself.  Liability 
to  answer  to  every  one  who  might  feel  himself  aggrieved  by  the 
action  of  the  judge  would  be  inconsistent  with  the  possession  of 
this  freedom,  and  would  destroy  that  independence  without  which 


536  LIABILITY   OF   OFFICERS. 

no  judiciary  can  be  either  respectable  or  useful.  As  observed  by 
a  distinguished  English  judge,  it  would  establish  the  weakness  of 
judicial  authority  in  a  degrading  responsibility. 

The  principle,  therefore,  which  exempts  judges  of  courts  of  su- 
perior or  general  authority  from  liability  in  a  civil  action  for  acts 
done  by  them  in  the  exercise  of  their  judicial  functions,  obtains  in 
all  countries  where  there  is  any  well  ordered  system  of  jurispru- 
dence. It  has  been  the  settled  doctrine  of  the  English  courts  for 
many  centuries,  and  has  never  been  denied,  that  we  are  aware  of, 
in  the  courts  of  this  country.  It  has,  as  Chancellor  Kent  observes, 
"a  deep  root  in  the  common  law." 

In  this  country  the  judges  of  the  isuperior  courts  of  record  are 
only  responsible  to  the  people,  or  the  authorities  constituted  by  the 
people,  from  whom  they  receive  their  commissions  for  the  manner 
in  which  they  discharge  the  great  trusts  of  their  oflSce.  If  in  the 
exercise  of  the  powers  with  which  they  are  clothed  as  ministers  of 
justice,  they  act  with  partiality,  or  maliciously,  or  corruptly,  or 
arbitrarily,  or  oppressively,  they  may  be  called  to  an  account  by 
impeachment  and  suspended  or  removed  from  oflBce.  In  some 
states  they  may  be  thus  suspended  or  removed  without  impeach- 
ment, by  a  vote  of  the  two  houses  of  the  legislature. 

.  .  .  .  Judges  of  courts  of  superor  or  general  jurisdiction  are 
not  liable  to  civil  actions  for  their  judicial  acts,  even  when  such 
acts  are  in  excess  of  their  jurisdiction,  and  are  alleged  to  have 
been  done  maliciously  or  corruptly.  A  distinction  must  be  here 
observed  between  excess  of  jurisdiction  and  the  clear  absence  of 
all  jurisdiction  over  the  subject-matter.  Where  there  is  clearly  na 
jurisdiction  over  the  subject-matter  any  authority  exercised  is  an 
usurped  authority,  and  for  the  exercise  of  such  authority,  when  the 
want  of  jurisdiction  is  known  to  the  judge,  no  excuse  is  permissible. 
But  where  jurisdiction  over  the  subject-matter  is  invested  by  law 
in  the  judge,  or  in  the  court  which  he  holds,  the  manner  and  extent 
in  which  the  jurisdiction  shall  be  exercised  are  generally  as  much 
questions  for  his  determination  as  any  other  questions  involved  in 
the  case,  although  upon  the  correctness  of  his  determination  in 
these  particulars  the  validity  of  his  judgments  may  depend.  Thus, 
if  a  probate  court,  invested  only  with  authority  over  wills  and  the 
settlement  of  estates  of  deceased  persons,  should  proceed  to  try 
parties  for  public  offenses,  jurisdiction  over  the  subject  of  offenses 
being  entirely  wanting  in  the  court,  and  this  being  necessarily 


BRADLEY  V.   FISHER.  537 

known  to  its  judge,  his  commission  would  afford  no  protection  to 
him  in  the  exercise  of  the  usurped  authority.  But  if,  on  the  other 
hand,  a  judge  of  a  criminal  court,  invested  with  general  criminal 
jurisdiction  over  offenses  committed  within  a  certain  district, 
should  hold  a  particular  act  to  be  a  public  offense,  which  is  not 
by  the  law  made  an  offense,  and  proceed  to  the  arrest  and  trial  of 
a  party  charged  with  such  act,  or  should  sentence  a  party  con- 
.victed  to  a  greater  punishment  than  that  authorized  by  the  law  upon 
its  proper  construction,  no  personal  liability  to  civil  actions  for 
such  acts  would  attach  to  the  judge,  although  those  acts  would  be 
in  excess  of  his  jurisdiction,  or  of  the  jurisdiction  of  the  court  held 
by  him,  for  these  are  particulars  for  his  judicial  consideration, 
whenever  his  general  jurisdiction  over  the  subject-matter  is  in- 
voked. Indeed  some  of  the  most  difficult  and  embarrassing  ques- 
tions which  a  judicial  officer  is  called  upon  to  consider  and  deter- 
mine relate  to  his  jurisdiction,  or  that  of  the  court  held  by  him,  or 
the  manner  in  which  the  jurisdiction  shall  be  exercised.  And  the 
same  principle  of  exemption  from  liability  which  obtains  for  errors 
committed  in  the  ordinary  prosecution  of  a  suit  where  there  is 
jurisdiction  of  both  subject  and  person,  applies  in  cases  of  this 
kind,  and  for  the  same  reasons. 

The  exemption  of  judges  of  the  superior  courts  of  record  from 
liability  to  civil  suit  for  their  judicial  acts  existing  when  there 
is  jurisdiction  of  the  subject-matter,  though  irregularity  and  error 
attend  the  exercise  of  the  jurisdiction,  the  exemption  cannot  be 
affected  by  any  consideration  of  the  motives  with  which  the  acts 
are  done.  The  allegation  of  malicious  or  corrupt  motives  could 
always  be  made,  and  if  the  motives  could  be  inquired  into  judges 
would  be  subjected  to  the  same  vexatious  litigation  upon  such  alle- 
gations, whether  the  motives  had  or  had  not  any  real  existence. 
Against  the  consequences  of  their  erroneous  or  irregular  action, 
from  whatever  motives  proceeding,  the  law  has  provided  for  pri- 
vate parties  numerous  remedies,  and  to  those  remedies  they  must, 
in  such  cases,  resort.  But  for  malice  or  corruption  in  their  ac- 
tion whilst  exercising  their  judicial  functions  within  the  general 
scope  of  their  jurisdiction,  the  judges  of  these  courts  can  only  be 
reached  by  public  prosecution  in  the  form  of  impeachment,  or  in 
such  other  form  as  may  be  specially  prescribed. 

If,  now,  we  apply  the  principles  thus  stated,  the  question  pre- 
sented in  this  case  is  one  of  easy  solution. 


538  LIABILITY  OF  OFFICERS. 

The  Criminal  Court  of  the  District  erred  in  not  citing  the  plain- 
tiff, before  making  the  order  striking  his  name  from  the  roll  of  its 
attorneys,  to  show  cause  why  such  order  should  not  be  made  for 
the  offensive  language  and  conduct  stated,  and  affording  him 
opportunity  for  explanation,  or  defense,  or  apology.  But  this 
erroneous  manner  in  which  its  jurisdiction  was  exercised,  however 
it  may  have  affected  the  validity  of  the  act,  did  not  make  the  act 
any  less  a  judicial  act;  nor  did  it  render  the  defendant  liable  to 
answer  in  damages  for  it  at  the  suit  of  the  plaintiff,  as  though  the 
court  had  proceeded  without  having  any  jurisdiction  whatever 
over  its  attorneys. 

We  find  no  error  in  the  rulings  of  the  court  below,  and  its  judg- 
ment must,  therefore,  be  affirmed,  and  it  is  so  ordered. 

Judgment  affirmed. 

Mr.  Justice  Davis,  with  whom  concurred  Mr.  Justice  Clifford, 
dissenting. 


SPALDING  V.  VILAS. 


Supreme  Court  of  the  United  States.    October,  1895. 
161  U.  S.  483. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

We  are  of  opinion  that  the  same  general  considerations  of  public 
policy  and  convenience  which  demand  for  judges  of  courts  of 
superior  jurisdiction  immunity  from  civil  suits  for  damages  arising 
from  acts  done  by  them  in  the  course  of  the  performance  of  their 
judicial  functions,  apply  to  a  large  extent  to  official  communica- 
tions made  by  heads  of  executive  departments  when  engaged  in 
the  discharge  of  duties  imposed  upon  them  by  law.  The  interest 
of  the  people  requires  that  due  protection  be  accorded  to  them  in 
respect  of  their  official  acts.  As  in  the  case  of  a  judicial  officer,  we 
recognize  a  distinction  between  action  taken  by  the  head  of  a  de- 
partment in  reference  to  matters  which  are  manifestly  or  palpably 
beyond  his  authority,  and  action  having  more  or  less  connection 
with  the  general  matters  committed  by  law  to  his  control  or  super- 
vision. Whatever  difficulty  may  arise  in  applying  these  principles 
to  particular  cases,  in  which  the  rights  of  the  citizen  may  have 
been  materially  impaired  by  the  inconsiderate  or  wrongful  action 
of  the  head  of  a  department,  it  is  clear — and  the  present  case  re- 


JONES  V.  LOVING.  539 

quires  nothing  more  to  be  determined — that  he  cannot  be  held  liable 
to  a  civil  suit  for  damages  on  account  of  official  communications 
made  by  him  pursuant  to  an  act  of  Congress,  and  in  respect  of 
matters  within  his  authority,  by  reason  of  any  personal  motive 
that  might  be  alleged  to  have  prompted  his  action;  for,  personal 
motives  cannot  be  imputed  to  duly  authorized  official  conduct.  In 
exercising  the  functions  of  his  office,  the  head  of  an  executive  de- 
partment, keeping  within  the  limits  of  his  authority,  should  not  be 
under  an  apprehension  that  the  motives  that  control  his  official 
conduct  may,  at  any  time,  become  the  subject  of  an  inquiry  in  a 
civil  suit  for  damages.  It  would  seriously  cripple  the  proper  and 
effective  administration  of  public  affairs  as  entrusted  to  the  ex- 
ecutive branch  of  the  government,  if  he  were  subjected  to  any 
such  restraint.  He  may  have  legal  authority  to  act,  but  he  may 
have  .such  large  discretion  in  the  premises  that  it  will  not  always 
be  his  absolute  duty  to  exercise  the  authority  with  which  he  is  in- 
vested. But  if  he  acts,  having  authority,  his  conduct  cannot  be 
made  the  foundation  of  a  suit  against  him  personally  for  damages, 
even  if  the  circumstances  show  that  he  is  not  disagreeably  impressed 
by  the  fact  that  his  action  injuriously  affects  the  claims  of  par- 
ticular individuals.  In  the  present  case,  as  we  have  found,  the 
defendant,  in  issuing  the  circular  in  question,  did  not  exceed  his 
authority,  nor  pass  the  line  of  his  duty,  as  Postmaster  General. 
The  motive  that  impelled  him  to  do  that  of  which  the  plaintiff 
complains  is,  therefore,  wholly  immaterial.  If  we  were  to  hold 
that  the  demurrer  admitted,  for  the  purpose  of  the  trial,  that  the 
defendant  acted  maliciously,  that  could  not  change  the  law. 

The  judgment  of  the  Supreme  Court  of  the  District  of  Colum- 
bia is  Affirmed. 


JONES  V.  LOVING. 


Supreme  Court  of  Mississippi.    October,  1877. 
55  Mississippi    109. 

Chalmers,  J.,  delivered  the  opinion  of  the  court. 

The  plaintiff,  late  mayor  of  the  town  of  Beauregard,  brings 
this  suit  against  the  defendants,  late  aldermen  of  said  town,  to 
recover  from  them,  individually,  damages  alleged  to  have  been 
sustained  by  him  from  the  passage  by  them  of  an  ordinance  which, 


540  LIABILITY   OF   OFFICERS. 

as  he  alleges,  "unlawfully  and  maliciously  deprived  him  of  his 
legal  rights,  fees,  privileges,  and  emoluments,  and  of  his  office  of 
mayor  as  aforesaid." 

It  is  impossible  to  perceive  upon  what  theory  such  a  suit  can 
be  maintained.  If  the  ordinance  was  within  the  authority  of  the 
board,  certainly  the  individual  members  of  it  cannot  be  made  per- 
sonally liable  for  a  mistaken  exercise  of  their  powers ;  nor  is  it  pos- 
sible in  such  a  case  to  inquire  into  the  motives  which  prompted 
their  action.  By  the  3d  section  of  the  Charter  of  the  town,  the 
board  are  constituted  a  legislative  body,  and  given  power  "to  make 
all  needful  laws  and  ordinances  for  the  good  government  of  said 
town  and  its  inhabitants." 

It  certainly  cannot  be  argued  that  the  motives  of  the  individual 
members  of  a  legislative  assembly,  in  voting  for  a  particular  law, 
can  be  inquired  into,  and  its  supporters  be  made  personally  liable, 
upon  an  allegation  that  they  acted  maliciously  towards  the  person 
aggrieved  by  the  passage  of  the  law.  Whenever  the  officers  of  q 
municipal  corporation  are  vested  with  legislative  powers,  they  hold 
and  exercise  them  for  the  public  good,  and  are  clothed  with  all  the 
immunities  of  government,  and  are  exempt  from  all  liability  fo» 
their  mistaken  use.  I  am.  Ld.  Cas.  side  p.  653 ;  County  Comrs.  v. 
Ducket,  20  Md.  469 ;  Borough  of  Freeport  v.  Marks,  9  Pa.  St.  253 

If,  on  the  contrary,  the  aldermen  of  the  town  of  Beauregard  ex.  1 
ceeded  the  measure  of  their  authority  in  passing  the  ordinance  in 
question,  it  was  a  mere  brutum  fulmen,  and  could  not  for  one 
moment  have  deprived  the  plaintiff  of  any  of  the  privileges,  emolu^J 
ments,  or  fees  of  his  office.  If  he  chose  voluntarily  to  yield  obedi- 
ence to  a  void  law,  it  was  his  own  folly,  for  which  the  courts  can 
afford  him  no  relief  by  awarding  damages  against  the  individuals 
voting  for  the  ordinance. 

Judgment  sustaining  demurrer  to  declaration  affirmed. 


COFFIN  V.  COFFIN. 


Supreme  Judicial  Court  of  Massachusetts.    March,  1808. 
4  Massachusetts  1. 

Parsons,  C.  J.  The  plaintiff  has  commenced  an  action  of  the 
case,  demanding  damages  of  the  defendant  for  an  injury  to  his 
character  committed  by  the  defendant  in  maliciously  uttering  and 
publishing  defamatory  words,  which  imported  that  the  plaintiff 
had  committed  felony  by  robbing  the  Nantucket  bank. 


COFFIN  V.   COFFIN.  541 

To  this  demand  the  defendant  pleaded  not  guilty,  and  also,  by 
leave  of  the  court,  a  special  plea  in  bar,  justifying  the  speaking  of 
the  words,  because,  as  he  alleged,  at  the  time  when  they  were 
spoken,  he  and  Benjamin  Russell  were  members  of  the  house  of 
representatives  then  in  session,  and  that  he  spoke  the  words  to 
Russell,  in  deliberation  in  the  house,  concerning  the  appointment 
of  a  notary  public,  and  that  the  words  had  relation  to  the  subject 
of  their  deliberation. 

The  plaintiff,  in  his  replication,  denies  these  allegations ;  and 
avers  that  the  words  were  spoken  by  the  defendant  of  his  own 
wrong,  and  without  such  cause  as  he  had  alleged,  and  tenders  an 
issue  to  the  country.  The  defendant  does  not  demur  to  the  replica- 
tion, but  joins  the  issue  thus  tendered. 

Both  the  issues  came  on  to  trial,  and  it  appeared  from  the  evi- 
dence that  when  the  words  were  spoken,  the  defendant  and  Russell 
were  members  of  the  house  of  representatives,  then  in  session.  The 
occasion,  manner  and  circumstances  of  speaking  them  are  thus 
related  by  Russell,  the  witness.  He  having  some  acquaintance  with 
the  plaintiff,  and  thinking  highly  of  his  integrity,  was  applied  to 
by  him  to  move  a  resolution  for  the  appointment  of  an  additional 
notary  for  Nantucket,  the  town  represented  by  the  defendant. 
Russell  made  the  motion,  and  had  leave  to  lay  the  resolution  on 
the  table.  The  defendant,  in  his  place,  inquired  where  Russell 
had  the  information  of  the  facts,  on  which  the  resolution  was 
moved.  The  witness  answered,  from  a  respectable  gentleman  from 
Nantucket.  The  resolution  then  passed,  and  the  speaker  took  up 
some  other  business.  Russell  then  left  his  place,  and  was  standing 
in  the  passage-way,  within  the  room,  conversing  with  several  gen- 
tlemen. The  defendant,  leaving  his  place,  came  over  to  Russell, 
and  asked  him  who  was  the  respectable  gentleman,  from  whom  he 
had  received  the  information  he  had  communicated  to  the  house; 
Russell  answered  carelessly,  he  was  perhaps  one  of  his  relations, 
and  named  Cofftn,  as  most  of  the  Nantucket  people  were  of  that 
name.  The  witness  then,  perceiving  the  plaintiff  sitting  behind  the 
bar,  pointed  to  him,  and  informed  the  defendant  he  was  the  man. 
The  defendant  looked  towards  him  and  said,  ''what,  that  convict?" 
Russell  surprised  at  the  question,  asked  the  defendant  what  he 
meant,  replied,  "Don't  thee  know  the  business  of  Nantucket 
bank?"  Witness  said,  "yes,  but  he  was  honourably  acquitted." 
The  defendant  then  said,  "that  did  not  make  him  less  guilty,  thee 
knows."  It  further  appears  that  this  conversation  passed  a  little 
before  one  o  'clock,  that  the  election  of  notaries  was  not  then  before 


542  LIABILITY  OP  OFFICERS. 

the  house,  but  was  made  that  afternoon,  or  the  next  day,  and  that 
the  plaintiff  was  not  a  candidate  for  that  office.  And  there  is  no 
evidence  that  the  resolution  laid  on  the  table  by  Russell,  and 
passed,  or  the  subject  matter  of  it,  was  ever  after  called  up  in  the 
house. 

The  twenty-first  article  of  the  declaration  of  rights  declares  that 
"the  freedom  of  deliberation,  speech  and  debate  in  either  house  of 
the  legislature  is  so  essential  to  the  rights  of  the  people,  that  it 
cannot  be  the  foundation  of  any  accusation,  or  prosecution,  action 
or  complaint  in  any  other  court  or  place  whatsoever."  On  this 
article  the  defendant  relies  for  his  justification 

In  considering  this  article,  it  appears  to  me  that  the  privilege 
secured  by  it  is  not  so  much  the  privilege  of  the  house  as  an  organ- 
ized body,  as  of  each  individual  member  composing  it,  who  is  en- 
titled to  this  privilege,  even  against  the  declared  will  of  the  house. 
For  he  does  not  hold  this  privilege  at  the  pleasure  of  the  house; 
but  derives  it  from  the  will  of  the  people,  expressed  in  the  consti- 
tution, which  is  paramount  to  the  will  of  either  or  both  branches 
of  the  legislature.  In  this  respect  the  privilege  here  secured  re- 
sembles other  privileges  attached  to  each  member  by  another  part 
of  the  constitution,  by  which  he  is  exempted  from  arrests  on  mesne 
(or  original)  process,  during  his  going  to,  returning  from,  or  at- 
tending the  general  court.  Of  these  privileges,  thus  secured  to 
each  member,  he  cannot  be  deprived,  by  a  resolve  of  the  house,  or 
by  an  act  of  the  legislature. 

These  privileges  are  thus  secured,  not  with  the  intention  of  pro- 
tecting the  members  against  prosecutions  for  their  own  benefit,  but 
to  support  the  rights  of  the  people,  by  enabling  their  representa- 
tives to  execute  the  functions  of  their  office,  without  fear  of  pros- 
ecutions, civil  or  criminal.  I  therefore  think  that  the  article  ought 
not  to  be  construed  strictly,  but  liberally,  that  the  full  design  of 
it  may  be  answered.  I  will  not  confine  it  to  delivering  an  opinion, 
uttering  a  speech,  or  haranguing  in  debate;  but  will  extend  it  to 
the  giving  of  a  vote,  to  the  making  of  a  written  report,  and  to 
every  other  act  resulting  from  the  nature,  and  in  the  execution  of 
the  office;  and  I  would  define  the  article,  as  securing  to  every 
member  exemption  from  prosecution,  for  every  thing  said  or  done 
by  him,  as  a  representative,  in  the  exercise  of  the  functions  of  that 
office;  without  enquiring  whether  the  exercise  was  regular  accord- 
ing to  the  rules  of  the  house,  or  irregular  and  against  their  rules. 
I  do  not  confine  the  member  to  his  place  in  the  house ;  and  I  am 


COFFIN  V.   COFFIN.  543 

satisfied  that  there  are  cases,  in  which  he  is  entitled  to  this  privi- 
lege, when  not  within  the  walls  of  the  representatives'  chamber. 

Was  Cofifin,  the  defendant,  in  speaking  the  defamatory  words, 
executing  the  duties  of  his  office?  Or,  in  other  language,  was  he 
acting  as  a  representative?  If  he  was,  he  is  entitled  to  the  privi- 
lege he  claims.  If  he  was  not,  but  was  acting  as  a  private  citizen, 
as  a  private  citizen  he  must  answer. 

Upon  information  given  by  the  plaintiff  to  Russell,  a  member, 
he  had  moved  a  resolution  providing  for  the  choice  of  another 
notary  for  Nantucket;  and  on  Russell's  stating  that  his  informa- 
tion was  from  a  respectable  person  from  that  place,  the  resolution 
had  passed;  the  house  had  proceeded  to  other  business;  and  the 
subject  matter  of  the  resolution,  or  of  the  information,  was  not 
in  fact  before  the  house;  although  it  is  certain  that  any  member 
might  have  moved  to  rescind  the  resolution.  Russell,  his  brother 
member,  was  in  the  passage  way,  conversing  with  several  gentle- 
men; the  defendant  came  to  him,  and  enquired  the  name  of  Rus- 
sell's informant,  who,  he  had  declared,  was  a  respectable  gentle- 
man from  Nantucket.  Was  this  enquiry,  thus  made,  the  act  of 
a  representative,  discharging  his  duty,  or  of  a  private  citizen,  to 
gratify  his  curiosity?  It  was  the  former,  say  the  defendant's 
counsel.  Whether  it  was  or  not,  certainly  it  was  innocent.  But 
to  pursue  the  evidence,  the  defendant  was  answered ;  whatever  was 
his  motive,  he  had  received  the  information.  If  upon  it,  he  in- 
tended again  to  call  up  the  resolution,  he  might  have  done  it.  But 
no  motion,  for  that  purpose,  was  ever  made.  He  then  utters  to 
Russell  the  defamatory  words.  What  part  of  his  legislative  duty 
was  he  now  performing?  It  is  said  that  he  might  apprehend  that 
the  plaintiff  was  a  candidate  for  the  office  of  notary ;  and  that  his 
motive  might  be  to  dissuade  Russell  from  giving  him  his  vote.  But 
there  is  no  evidence  that  the  defendant  supposed  the  plaintiff  to 
be  a  candidate,  and  it  is  in  evidence  that  the  plaintiff  was  not  a 
candidate.  It  is  also  apparent  that  the  defendant  believed  that 
Russell  was  not  ignorant  of  the  indictment  against  the  plaintiff, 
and  of  his  acquittal.  I  cannot  therefore  assign  to  the  defendant 
any  other  motive  for  his  indiscreet  language,  but  to  correct  Rus- 
sell for  giving  to  the  plaintiff  the  appellation  of  a  respectable  gen- 
tleman ;  and  to  justify  the  correction,  by  asserting  that  an  honour- 
able acquittal,  by  the  verdict  of  a  jury,  is  not  evidence  of  inno- 
cence. It  is  not  therefore  possible  for  me  to  presume  that  the 
defendant,  in  using,  thus  publicly,  the  defamatory  words,  even 


544  LIABILITY   OP   OPPICBES. 

contemplated  tliat  he   was   in   the  discharge  of  any  official  duty. 

And  I  do  consider  a  representative  holden  to  answer  for  defam-\ 
atory  words,  spoken  maliciously,  and  not  in  discharging  the  func-j 
tions  of  his  office.    But  to  consider  every  malicious  slander,  uttered 
by  a  citizen,  who  is  a  representative,  as  within  his  privilege,  be-'^ 
cause  it  was  uttered  in  the  walls  of  the  representatives'  chamber i 
to  another  member,  but  not  uttered  in  executing  his  official  duty  J 
would  be  to  extend  the  privilege  further  than  was  intended  by  the/ 
people,  or  than  is  consistent  with  sound  policy;  and  would  render  ) 
the  representatives'  chamber  a  sanctuary  for  calumny;  an  effect,^ 
which  never  has  been,  and,  I  confidently  trust,  never  will  be  en- 
dured by  any  house  of  representatives  of  Massachusetts. 

Extreme  cases  of  the  abuse  of  power,  either  in  the  house  of  rep- 
resentatives, or  in  this  court,  may  be  imagined ;  but  they  are  not  to 
be  argued  from,  to  influence  legal  decisions. 

Since  the  argument  of  this  cause,  I  have  examined  the  subject 
with  as  much  attention  as  I  have  been  able  to  give  to  it,  amidst  all 
the  business  of  the  court  pressing  on  us,  with  a  strong  disposition 
to  guard  the  privileges  of  the  house,  and  of  its  members,  because! 
their  privileges  are  essential  to  the  rights  of  the  people,  and  ought' 
to  be  supported,  by  every  good  citizen,  according  to  their  true 
limits. 

From  this  examination  I  am  satisfied  that,  whatever  may  be  our  . 
decision  of  the  question,  it  is  within  our  jurisdiction  thus  brought  I 
before  us;  and  that  no  breach  of  the  privileges  of  the  house,  or  a  | 
conflict  with  its  jurisdiction  can  result  from  our  determination. 

I  am  convinced,  after  much  consideration,  that  the  facts  pre-  \ 
sented  by  the  case  do  not  entitle  the  defendant  to  the  privilege,  | 
which  he  claims ;  and  that,  for  this  cause,  the  verdict  ought  not  toy 
be  set  aside. 

Under  this  impression,  to  give  a  different  opinion  would  be  a 
desertion  of  a  solemn  duty,  and  a  gross  prevarication  with  my  own 
conscience. 

In  this  opinion  of  the  Chief  Justice,  the  other  'Judges,  viz.,  Sedg- 
wick, Sewall,  Thatcher  and  Parker,  severally  declared  their 
full  and  entire  concurrence. 


GOODWIN  V.  GUILD.  545 

GOODWIN  V.  GUILD. 

Supreme  Court  of  Tennessee.    March  1,  1895. 
94  Tenn.  486. 

Wilkes,  J.  This  is  an  action  for  false  imprisonment  and  mali- 
cious prosecution.  It  was  tried  before  a  special  judge  in  the  court 
below  without  the  intervention  of  a  jury,  and  a  judgment  rend- 
ered for  $1,500 — $1,000  of  which  were  awarded  as  actual  and  $500 
as  exemplary  damages — and  defendant  has  appealed,  and  assigned 
many  errors,  which  need  not  be  treated  in  detail. 

A  short  statement  of  the  facts  in  the  case  is  that  plaintiff 
entered  into  a  contract  with  the  Board  of  Public  Works  and  Affairs 
to  construct  a  sewer  in  the  city  of  Nashville.  This  contract,  while 
dated  April  14,  1892,  appears  to  have  been  executed  on  the  part 
of  the  board  on  April  18,  1892,  and  was  in  pursuance  of  a  public 
letting  to  the  lowest  responsible  bidder  had  before  that  date,  and 
about  April  2,  1892.  The  plaintiff  secured  the  contract  and  ex- 
pected and  intended  to  use  convict  labor  in  its  execution;  and 
there  is  proof  tending  to  show  that  this  fact  was  known  to  the 
Board  of  Public  Works  and  Affairs  at  the  time  the  contract  was 
let  to  the  lowest  bidder.  After  the  public  letting  on  the  2d  of 
April,  the  Mayor  and  City  Council  of  Nashville,  on  the  14th  day 
of  April,  1892,  passed  an  ordinance  making  it  unlawful  for  any 
person  to  use  or  employ  convict  labor  on  any  work  to  be  executed 
under  contract  with  the  city  of  Nashville,  under  a  penalty  of  $50 
for  each  violation.  Defendant  Guild  was  Mayor  of  Nashville,  and, 
being  notified  that  plaintiff  was  using  convicts  upon  the  work 
under  his  contract  with  the  city,  on  April  23,  1892,  went  before  the 
Recorder,  and  procured  Mr.  Cleary,  Street  Observer,  to  make  the 
necessary  affidavit  that  plaintiff  was  violating  the  city  ordinance 
by  working  convicts  in  the  city  limits  under  his  contract;  and 
thereupon  the  Recorder  and  Judge  of  the  City  Court,  at  the  sug- 
gestion of  the  said  Guild,  issued  a  warrant  for  plaintiff's  arrest, 
which  was  given  to  a  member  of  the  police  force,  who  met  the 
plaintiff,  read  the  warrant  to  him,  and  cited  him  to  appear  before 
the  Recorder  on  the  next  morning,  which  he  agreed  to  do.  No 
actual  arrest  was  made  by  touching  the  plaintiff  or  taking  him 
into  custody,  and  no  bond  for  his  appearance  was  required.  He 
did  appear,  was  fined  $50,  and  appealed  to  the  Circuit  Court,  and 
was  in  that  court  tried  and  acquitted  December  15,  1892,  on  the 
ground  that  the  city  ordinance  was  in  contravention  of  an  Act  of 

35 


546  LIABILITY   OP  OFFICERS. 

the  General  Assembly,  and  hence  was  void,  and  gave  no  authority 
for  plaintiff's  arrest.  Thereupon,  November  16,  1893,  plaintiff 
brought  this  action  for  damages  for  false  imprisonment  and  mali- 
cious prosecution  against  the  defendant  personally,  and  against 
the  members  of  the  Board  of  Public  Works  individually,  and  the 
Mayor  and  City  Council  of  Nashville.  On  demurrer,  the  action 
as  to  the  Mayor  and  City  Council  was  dismissed.  The  cause  was 
tried  and  resulted  in  the  acquittal  of  the  members  of  the  Board  of 
Public  Works,  and  in  judgment  against  the  defendant.  Guild,  as 
before  stated. 

It  is  conceded  that  the  ordinance  of  the  city  under  which  the 
mayor  proceeded  was  in  contravention  of  law,  and  was,  therefore, 
void,  but  at  the  time  these  proceedings  were  taken,  it  had  not  been 
so  declared  by  any  judicial  tribunal,  and  defendant  insists  that  he 
acted  in  perfect  good  faith  in  attempting  to  execute  the  ordinance 
as  it  was  passed  and  stood  upon  the  books  of  the  city,  and  was 
actuated  by  no  malice.  The  Circuit  Judge,  in  his  written  opin- 
ion, found  that  the  defendant  was  actuated  by  no  feelings  of 
malice.  \ 

\ 

.  .  .  .  It  does  not  appear  that  he  took  any  part  in  the  pro- 
ceedings after  they  were  first  instituted,  but  merely  set  on  foot 
the  proceedings  to  test  and  execute  the  ordinance.  It  is  evident 
that  this  void  ordinance  could  not  justify  the  arrest  of  the  plain- 
tiff and  his  prosecution,  still,  it  was  the  duty  of  the  mayor,  as  the 
chief  executive  of  the  city,  to  see  its  ordinances  enforced,  and,  so 
long  as  he  acted  in  good  faith,  and  with  no  malice  or  improper 
motive,  he  cannot  be  held  personally  liable  for  a  mere  error  in 
judgment.  If  he  took  advantage  of  his  official  position  to  oppress 
the  plaintiff,  either  from  ill  will  towards  him,  or  because  of  any 
other  improper  motive,  he  would  be  liable. 

The  doctrine  is  tersely  stated  in  Kendall  v.  Stokes,  3  How.  (U. 
S.)  87,  98,  by  Chief  Justice  Taney,  in  these  words:  "A  public 
officer  is  not  liable  to  an  action  if  he  falls  into  an  error  in  a  case 
where  the  act  to  be  done  is  not  merely  a  ministerial  one,  but  is 
one  in  relation  to  which  it  is  his  duty  to  exercise  judgment  and 
discretion,  even  though  an  individual  may  suffer  by  his  mistake." 

In  Bishop  on  Noncontract  Law,  Sec.  787,  it  is  said:  "By  the 
express  or  implied  terms  of  an  officer's  authority,  he  is  to  act  hon- 
estly, carefully,  and  after  the  dictates  of  his  own  judgment, 
which,  of  necessity,  being  a  human  judgment,  may  err.  There- 
fore, when  he  has  done  what  is  thus  commanded,  whether  the  re- 


TRACY  V.  SWARTWOUT.  547 

suit  is  correct  or  not,  he  has  exactly  discharged  his  duty,  and  the 
law  which  compelled  this  of  him  will  protect  him,  whatever  harm 
may  have  befallen  individuals." 

In  14  Amer.  &  Eng.  Enc.  of  Law,  p.  41,  it  is  held  that  "public 
officers,  called  upon  to  act  officially,  may  be  held  liable  for  a  mali- 
cious prosecution  on  the  same  grounds  as  other  persons.  But  mal- 
ice and  want  of  probable  cause  ought  very  clearly  to  appear  in 
such  case.  The  presumption  being  strongly  in  their  favor,  mere 
ignorance  of  the  law,  or  overpersuasion  by  others,  is  not  sufficient. ' ' 
While  we  would  not  be  understood  as  going  to  this  latter  length, 
still  it  will  not  do  to  apply  the  same  strict  rules  of  liability  to  an 
executive  officer,  whose  duty  it  is  to  see  the  laws  executed,  if  he 
makes  a  mistake  in  judgment  that  would  be  applied  to  an  indi- 
vidual who  has  no  public  duty  to  perform  in  execution  of  its  laws. 
To  hold  this  strict  rule  would  paralyze  the  arm  of  every  executive 
and  peace  officer;  and  while  such  officer,  for  any  wanton  or  mali- 
cious abuse  of  legal  process  which  is  set  on  foot  for  the  oppression 
of  a  citizen,  must  be  held  liable  to  the  same  or  possibly  to  a  greater 
extent  than  a  private  individual,  still  there  must  be  undoubted 
evidence  of  malice,  oppression  or  wanton  prosecution,  with  the  ab- 
sence of  all  probable  cause  or  excuse,  to  hold  a  public  officer  liable 
for  errors  in  the  execution  of  his  duties. 

For  these  reasons  the  judgment  of  the  court  below  is  reversed, 
and  the  cause  dismissed  at  plaintiff's  cost. 

But  an  act  Is  not  discretionary  simply  because  its  performance  requires 
the  ascertainment  of  the  existence  of  facts  the  existence  of  which  is 
necessary  in  order  that  the  act  may  legally  be  performed.  If  the  existence 
of  such  facts  Is  necessary  to  the  exercise  of  jurisdiction  a  mistaken  deter- 
mination that  they  exist  will  not  relieve  from  liability.  Mygatt  v.  Wash- 
burn, 15  N.  Y.  316,  supra,  officers  are  also  held  liable  for  a  gross  abuse  of 
discretion.    Kinneen  v.  Wells,  144  Mass.  497;  Pike  v.  McGuire,  44  Mo.  491. 


3.    Liability  of  Ministerial  Officers. 

TRACY  V.  SWARTWOUT. 

Supreme  Court  of  the  United  States.    January,  1836, 
10  Peters  80. 

Mr.  Justice  McLean  delivered  the  opinion  of  the  court. 

This  case  was  brought  into  this  court  by  a  writ  of  error  to  the 
circuit  court  for  the  southern  district  of  New  York.  The  suit  was 
prosecuted  in  that  court  to  recover  damages  from  the  defendant, 


548  LIABILITY   OP   OFFICERS, 

who,  as  collector  of  the  customs,  had  refused  to  allow  the  plain- 
tiffs to  enter  and  receive  the  payment  of  the  lawful  duties,  on 
certain  casks  of  the  sirup  of  sugar-cane ;  which  they  had  imported 
into  the  port  of  New  York. 

It  is  admitted  that  the  law  imposed  no  more  duty  on  the  article 
than  fifteen  per  cent  ad  valorem;  although  the  collector,  acting 
under  the  instructions  of  the  secretary  of  the  treasury,  required 
bond  for  the  payment  of  the  above  duty,  or,  should  it  be  required, 
a  duty  of  three  cents  per  pound.  No  bond  was  given,  and  the 
sirup  remained  in  the  possession  of  the  collector  for  a  long  time; 
by  which  means  its  value  was  greatly  deteriorated. 

The  question  for  consideration  arises  out  of  a  bill  of  exceptions, 
in  which  the  evidence  is  stated  at  large;  showing  the  quality  of 
the  sirup,  the  number  of  gallons  imported,  and  the  refusal  of  the 
defendant  to  take  bond  for  the  fifteen  per  cent  ad  valorem  duty. 

It  was  admitted  by  the  counsel  of  the  plaintiffs,  that  the  defend- 
ant acted  throughout  with  entire  good  faith;  and  under  instruc- 
tions from  the  treasury  department. 

The  collector  of  the  customs  is  a  ministerial  officer:  he  acts  un- 
der the  instructions  of  the  secretary  of  the  treasury,  who  is  ex- 
pressly authorized  to  give  instructions,  as  to  the  due  enforcement 
of  the  revenue  laws. 

Do  these  instructions,  when  not  given  in  accordance  with  the 
law,  afford  a  justification  to  the  collector,  or  exonerate  him  from 
the  payment  of  adequate  damages  for  an  injury  resulting  from  his 
illegal  acts? 

The  circuit  court,  in  their  charge  to  the  jurj%  did  not  consider 
these  instructions  as  a  justification  to  the  defendant;  and  in  this 
they  were  unquestionably  correct. 

The  secretary  of  the  treasury  is  bound  by  the  law ;  and  although 
in  the  exercise  of  his  discretion  he  may  adopt  necessary  forms  and 
modes  of  giving  effect  to  the  law;  yet,  neither  he  nor  those  who 
act  under  him,  can  dispense  with,  or  alter  any  of  its  provisions. 
It  would  be  a  most  dangerous  principle  to  establish,  that  the  acts 
of  a  ministerial  officer,  when  done  in  good  faith,  however  injuri- 
ous to  private  rights,  and  unsupported  by  law,  should  afford  no 
ground  for  legal  redress.  The  facts  of  the  case  under  considera- 
tion, will  forcibly  illustrate  this  principle.  The  importers  offer  to 
comply  with  the  law,  by  giving  bond  for  the  lawful  rate  of  duties ; 
but  the  collector  demands  a  bond  in  greater  amount  than  the  full 
value  of  the  cargo.    The  bond  is  not  given,  and  the  cargo  is  lost. 


GRIDER  V.   TALLY.  549 

or  its  value  greatly  reduced,  in  the  hands  of  the  defendant.  Where 
a  ministerial  officer  acts  in  good  faith,  for  an  injury  done,  he  is 
not  liable  to  exemplary  damages;  but  he  can  claim  no  further 
exemption,  where  his  acts  are  clearly  against  law. 

The  collector  has  a  right  to  hold  possession  of  imported  goods 
until  the  duties  are  paid  or  secured  to  be  paid,  as  the  law  re- 
quires. But,  if  he  shall  retain  possession  of  the  goods,  and  refuse 
to  deliver  them  after  the  duties  shall  be  paid,  or  bond  given,  or 
tendered,  for  the  proper  rate  of  duties,  he  is  liable  for  the  dam- 
ages which  may  be  sustained  by  this  refusal. 

The  collector,  in  point  of  law,  had  no  right  to  demand  a  bond 
for  more  than  the  duties  at  the  rate  of  fifteen  per  cent  ad  valorem; 
and  the  plaintiffs  were  under  no  obligation  to  give  bond  in  a 
greater  sum. 

Some  personal  inconvenience  may  be  experienced  by  an  officer 
who  shall  be  held  responsible  in  damages  for  illegal  acts  done  un- 
der instructions  of  a  superior;  but,  as  the  government  in  such 
cases  is  bound  to  indemnify  the  officer,  there  can  be  no  eventual 
hardship. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  the^ 
cause  remanded  to  that  court,  for  further  proceedings. 


GRIDER  V.  TALLY. 


Supreme  Court  of  Alabama.    December,  1884. 
77  Alabama,  422. 

Appeal  from  the  Circuit  Court  of  Jackson. 

The  record  does  not  show  the  name  of  the  presiding  judge. 

This  action  was  brought  by  William  M.  Grider,  against  John  B. 
Tally  and  others,  the  sureties  on  his  official  bond  as  the  probate 
judge  of  said  county;  and  was  commenced  on  the  9th  November, 
1881.  The  complaint  set  out  the  bond,  which  was  dated  the  24th 
August,  1880,  and  conditioned  that  the  said  Tally  "shall  faith- 
fully discharge  the  duties  of  such  office,  during  the  time  he  con- 
tinues therein,  or  discharges  any  of  the  duties  thereof;"  and 
alleged,  as  a  breach,  that  on  the  21st  December,  1880,  plaintiff  filed 


550  LIABILITY  OP  OFFICERS^ 

his  petition  to  said  Tally,  as  probate  judge  of  said  county,  praying 
for  a  license  to  sell  liquor  in  the  town  of  Belief orte,  "having  first 
complied  with  all  the  requirements  of  the  law  in  relation  to  the 
granting  of  license  for  the  sale  of  liquor;"  that  said  Tally  "wrong- 
fully and  unlawfully  refused  to  issue  a  license  to  plaintiff;"  that 
plaintiff  then  applied  to  Hon.  H.  C.  Speake,  the  presiding  judge 
of  the  circuit,  for  a  mandamus  requiring  said  Tally  to  issue  a 
license  as  prayed,  and  obtained  a  peremptory  mandamus;  that 
Tally  sued  out  an  appeal  to  this  court  from  said  order  of  Judge 
Speake,  and  said  order  was  affirmed  by  this  court;  that  plaintiff 
thereupon  again  applied  to  said  Tally  to  grant  him  a  license,  "ac- 
cording to  the  prayer  of  his  petition  and  the  judgment  of  said 
court,  and  said  Tally  again  wrongfully  and  unlawfully  refused  to 
issue  a  license;"  that  plaintiff  thereupon  prayed  and  obtained 
from  Judge  Speake  an  attachment,  directing  the  sheriff  of  said 
county  to  take  said  Tally  into  his  custody,  and  him  safely  keep 
until  he  issued  a  license  as  prayed ;  whereupon  said  Tally  did  issue 
a  license  to  plaintiff  as  prayed  in  his  said  petition.  Plaintiff  avers, 
that  by  reason  of  the  wrongful  and  unlawful  refusal  of  said  Tally 
to  issue  said  license,  he  was  put  to  great  trouble  and  expense  in 
procuring  the  several  judgments  of  the  courts,  whereby  he  was 
greatly  damaged,  to-wit,  in  the  sum  of  $200,  and,  by  reason  of  the 
delay  in  obtaining  his  license,  sustained  great  loss  in  his  busi 
ness,"  &c. 

The  court  sustained  a  demurrer  to  the  complaint,  on  the  ground 
that,  on  the  facts  alleged,  the  probate  judge  was  acting  in  a  judi- 
cial capacity,  and  therefore  no  action  would  lie  for  an  erroneous 
decision  by  him;  and  the  plaintiff  declining  to  amend,  rendered 
judgment  for  the  defendant.  The  judgment  on  the  demurrer  is 
now  assigned  as  error. 

Clopton,  J.  It  is  an  unquestioned  rule,  founded  on  the  pub- 
lic benefit,  the  necessity  of  maintaining  the  independence  of  the 
judiciary,  and  its  untrammelled  action  in  the  administration  of 
justice,  that  a  judge  can  not  be  held  to  answer  in  a  civil  suit  for 
doing,  or  omitting  or  refusing  to  do,  an  oflBcial  act  in  the  exercise 
of  judicial  power.  His  responsibility  for  the  manner  in  which 
he  discharges  the  high  trusts  committed  to  him  is  to  the  sovereignty 
from  which  he  derives  his  authority.  It  is,  also,  an  undisputed 
rule,  that  an  officer  who  is  charged  with  the  performance  of  min- 
isterial duties,  is  amenable  to  the  law  for  his  conduct,  and  is  liable 
to  any  party  specially  injured  by  his  acts  of  misfeasance  or  non- 
feasance.   When  the  law  assigns  to  a  judicial  officer  the  perform- 


GEIDER  V.   TALLY.  •        551 

ance  of  ministerial  acts,  he  is  as  responsible  for  the  manner  in 
which  he  performs  them,  or  for  neglecting  or  refusing  to  perform 
them,  as  if  no  judicial  functions  were  intrusted  to  him.  The  bound- 
ary of  his  judicial  character  is  the  line  that  marks  and  defines  his 
exemption  from  civil  liability. 

Our  law,  organic  and  statutory,  confers  on  the  probate  judge 
large  judicial  powers,  and  there  is  also  assigned  to  him  the  per- 
formance of  many  acts  merely  ministerial;  he  is  both  a  judicial 
and  a  ministerial  officer 

Judicial  power  is  authority,  vested  in  some  court,  officer  or  per- 
son, to  hear  and  determine,  when  the  rights  of  persons  or  property, 
or  the  propriety  of  doing  an  act,  are  the  subject-matter  of  adjudi- 
cation. Official  action,  the  result  of  judgment  or  discretion,  is  a 
judicial  act.  The  duty  is  ministerial,  when  the  law,  exacting  its 
discharge,  prescribes  and  defines  the  time,  mode  and  occasion  of 
its  performance,  with  such  certainty  that  nothing  remains  for 
judgment  or  discretion.  Official  action,  the  result  of  performing 
a  certain  and  specific  duty  arising  from  fixed  and  designated  facts, 
is  a  ministerial  act.  Flournoy  v.  City  of  Jefferson,  17  Ind.  169; 
Tenn.  &  Coosa  R.  B.  Co.  v.  Moore,  37  Ala.  371 ;  Morton  v.  Comp. 
Gen.,  4  S.  C.  430 ;  Commissioner  v.  Smith,  5  Tex.  471 ;  Life  &  Fire 
Ins.  Co.  V.  Wilson,  8  Pet.  291.  The  inquiry  should  be  directed  to 
the  question,  does  discretionary  power  attach  to  the  office — the  au- 
thority to  decide,  whether  the  license  should  or  should  not  be 
granted  ? 

Section  1544  of  the  Code  provides :  "No  license  must  be  granted 
to  sell  vinous  or  spirituous  liquor,  unless  the  applicant  produce  to 
the  judge  of  probate  of  his  county,  or  to  the  person  authorized  by 
law  to  grant  such  license,  the  recommendation  of  ten  respectable 
freeholders  and  householders  thereof,  residing  within  four  miles  of 
such  applicant,  stating  that  they  are  acquainted  with  him,  that 
he  is  possessed  of  good  moral  character,  and  is  in  all  respects  a 
proper  person  to  be  licensed."  The  succeeding  section  prescribes 
the  oath,  which  the  applicant  must  take  and  subscribe  before  license 
is  granted;  which  oath  may  be  administered  by  any  officer  au- 
thorized to  administer  oaths;  and  section  491  makes  it  the  duty 
of  the  probate  judge  to  issue  the  license  upon  payment  of  the 
amount  required  by  law  to  be  paid.  Blank  licenses  are  furnished 
by  the  auditor,  to  be  filled  and  signed  by  the  probate  judge.  No 
power  is  conferred  on  the  probate  judge  to  pass  on  the  moral  char- 
acter of  the  applicant,  or  whether  he  is  a  proper  person  to  be 
licensed,  or  on  the  propriety  of  issuing  a  license.     He  adjudges 


662  LIABILITY  OP  OFFICERS. 

nothing — decides  no  question.  On  the  production  of  the  proper 
recommendation,  taking  and  subscribing  the  prescribed  oath,  and 
paying  the  requisite  amount,  it  is  the  clear  and  specific  duty  of  the 
probate  judge  to  issue  the  license. 

If  it  be  said,  that  the  probate  judge  has  to  ascertain  that  the 
recommendation  is  by  the  freeholders  and  householders  of  the 
county,  residing  within  five  miles  of  the  applicant,  a  similar  neces- 
sity exists  in  every  case  of  a  ministerial  duty.  A  sheriff  must  de- 
termine whether  process,  coming  into  his  hands,  is  issued  from  a 
court  of  competent  jurisdiction,  and  is  regular  on  its  face;  and  a 
treasurer  of  public  moneys  must  ascertain  whether  the  warrant 
is  drawn  by  such  officer,  and  in  such  manner  that  its  pajTuent  is  a 
duty;  but  the  execution  of  the  process,  and  the  payment  of  the 
warrant,  are  ministerial  acts.  A  judge  must  determine  whether  a 
judgment  is  entered  according  to  the  verdict  of  the  jury,  or  the 
consideration  of  the  court,  and  whether  a  bill  of  exceptions  cor- 
rectly recites  the  proceedings;  but  the  act  of  signing  the  judg- 
ment and  bill  of  except-ions  is  ministerial.  That  a  necessity  may 
exist  for  the  ascertainment,  from  personal  knowledge,  or  by  in- 
formation derived  from  other  sources,  of  the  state  of  facts  on  which 
the  performance  of  the  act  becomes  a  clear  and  specific  duty,  docs 
not  operate  to  convert  it  into  an  act  judicial  in  its  nature.  Such  is 
not  the  judgment,  or  discretion,  which  is  an  essential  element  of 
judicial  action.  Crane  v.  Camp,  12  Conn.  464.  If  the  probate 
judge  acts  judicially  in  the  matter  of  issuing  a  license,  his  decision 
is  final  and  conclusive,  and  a  license  issued  to  a  relative,  within  the 
degrees  that  disqualify  a  judge,  is  void.  Halso  v.  Seawright,  65 
Ala.  431. 

An  appropriate  and  general  test  is  laid  down  in  Rains  v.  Simj)- 
son,  50  Tex.  495,  as  follows:  "Perhaps  as  safe  criterion  as  any 
other,  to  ascertain  whether  a  private  suit  will  or  will  not  lie,  is  to 
adopt  the  rule  which  governs  in  cases  in  which  a  mandamus  would 
or  would  not  be  granted.  On  the  refusal  of  the  probate  judge  to 
issue  the  license,  when  first  applied  for,  the  plaintiff  made  applica- 
tion to  the  Circuit  Court  for  a  mandamus,  commanding  him  to 
issue  it.  A  peremptory  mandamus  was  granted  by  the  Circuit 
Court,  and  on  appeal  to  this  court  the  judgment  was  affirmed. 
Tally  V.  Orider,  66  Ala.  119.  The  character  of  the  specific  act 
asked  to  have  performed  was  necessarily  involved  in  the  issue,  and 
determined.  This  is  manifest,  when  it  is  observed  that  a  man- 
damus, issued  to  an  officer  in  a  matter  in  respect  to  which  he  has 
discretionary  powers,  requires  him  only  to  take  action,  without 


ERSKINB  V.   HOHNBACH.  553 

directing  the  manner  in  which  his  discretion  shall  be  exercised; 
but,  when  the  act  is  merely  ministerial,  and  its  performance  man- 
datory, the  officer  having  no  discretion,  the  mandamus  requires 
and  commands  the  doing  of  the  specific  act.  If  the  duty  of  the 
probate  judge  is  judicial — if  he  possesses  discretionary  power  to 
issue  or  not  to  issue  a  license — a  mandamus  would  not,  and  could 
not  have  been  granted.  The  probate  judge  having  already  taken 
action  and  refused,  a  mandamus  would  have  had  no  office  to  per- 
form. Awarding  a  peremptory  mandamus  is  a  judicial  ascertain- 
ment that  the  probate  judge  has  no  discretionary  powers. 

It  may  be  proper  to  observe,  that  our  consideration  has  been 
directed  to  the  nature  of  the  power  and  duty  of  the  probate  judge 
under  the  general  laws  providing  for  and  regulating  the  issue  of 
license  to  sell  vinous  or  spirituous  liquor.  While  we  judicially 
know  the  act,  commonly  called  the  "Local  Option  Law,"  passed 
in  1875,  and  that  it  is  applicable  to  Jackson  county,  on  demurrer  to 
the  bill  of  complaint,  which  does  not  aver,  nor  make  any  allusion  to 
any  proceeding  under  the  act,  we  can  not  take  judicial  notice  that 
an  election  has  been  ordered  and  held  as  provided,  or  of  its  result. 
An  expression  of  opinion,  on  the  assumption  that  an  election  has 
been  ordered,  and  held  with  a  prohibitory  result,  would  be  prema- 
ture, and  mere  dictum. 

Reversed  and  remanded. 


ERSKINE  V.  HOHNBACH. 

Supreme  Court  of  the  United  States.    December,  1871. 
14  Wall.  613. 

Hohnbach  sued   Erskine,   a  collector  of  internal 

revenue,  in  an  action  of  trespass  for  the  seizure  by  him,  the  said 
collector,  and  conversion  to  his  use  of  certain  personal  property 
of  the  alleged  value  of  $10,000,  belonging  to  him,  the  plaintiff 

The  declaration  was  in  the  usual  form  in  such  cases,  and  alleged 
that  the  seizure  and  conversion  were  made  in  May,  1869,  at  Mil- 
waukee, in  the  State  of  Wisconsin.  To  this  the  defendant  pleaded 
the  general  issue,  and  two  special  pleas,  in  which  he  justified  the 
acts  complained  of  on  the  ground  that  they  were  done  by  him  as 
collector  of  internal  revenue  of  the  first  collection  district  of  Wis- 


554  LIABILITY  OP  OFFICERS. 

consin,  in  the  enforcement  of  an  assessment  chargeable  against  the 
plaintiff,  duly  made  by  the  assessor  of  the  district,  and  certified 
to  him,  with  an  order  directing  its  collection.  Both  pleas  set  up 
the  same  defence  of  justification  as  collector  of  internal  revenue, 
differing  only  in  the  particularity  with  which  the  facts  of  assess- 
ment and  distraint  and  sale  of  the  property  were  detailed. 


Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

The  collector  could  not  revise  nor  refuse  to  enforce  the  assess- 
ment regularly  made  by  the  assessor  in  the  exercise  of  the  latter 
jurisdiction.  The  duties  of  the  collector  in  the  enforcement  of  the 
tax  assessed  were  purely  ministerial.  The  assessment  duly  certified 
to  him,  was  his  authority  to  proceed,  and,  like  an  execution  to  a 
sheriff,  regular  on  its  face,  issued  by  a  tribunal  having  jurisdiction 
of  the  subject-matter,  constituted  his  protection. 

Whatever  may  have  been  the  conflict  at  one  time,  in  the  ad- 
judged cases,  as  to  the  extent  of  protection  afforded  to  ministerial 
officers  acting  in  obedience  to  process,  or  orders  issued  to  them  by 
tribunals  or  officers  invested  by  law  with  authority  to  pass  upon 
and  determine  particular  facts,  and  render  judgment  thereon,  it 
is  well  settled  now,  that  if  the  officer  or  tribunal  possess  jurisdic 
tion  over  the  subject-matter  upon  which  judgment  is  passed,  with 
power  to  issue  an  order  or  process  for  the  enforcement  of  such 
judgment,  and  the  order  or  process  issued  thereon  to  the  minis- 
terial officer  is  regular  on  its  face,  showing  no  departure  from  the 
law,  or  defect  of  jurisdiction  over  the  person  or  property  affected, 
then,  in  such  cases,  the  order  or  process  will  give  full  and  entire 
protection  to  the  ministerial  officer  in  its  regular  enforcement 
against  any  prosecution  which  the  party  aggrieved  thereby  may 
institute  against  him,  although  serious  errors  may  have  been  com- 
mitted by  the  officer  or  tribunal  in  reaching  the  conclusion  or  judg- 
ment upon  which  the  order  or  process  is  issued.  Savacool  v.  Bough- 
ton,  5  Wend.  171 ;  Earl  v.  Camp,  16  id.  563 ;  Chegaray  v.  Jenkins, 
5  N.  Y.  376 ;  Sprague  v.  Birchard,  1  Wis.  457. 

Judgment  affirmed. 


COMMONWEALTH  V.  SHORTALL.  555 


COMMONWEALTH  V.  SHORTALL. 

Supreme  Court  of  Pennsylvania.    May,  1903. 
206  Pennsylvania  State  165. 

Petition  for  writ  of  habeas  corpus  on  behalf  of  the  relator  against 
respondent,  a  constable  who  had  him  in  custody  under  a  warrant 
of  arrest  for  homicide,  issued  by  a  justice  of  the  peace  in  Schuyl- 
kill county. 

Opinion  by  Mr.  Justice  Mitchell,  April  17,  1903 : 

A  somewhat  full  statement  of  the  facts  will  be  conducive  to  the 
proper  understanding  of  the  case. 

During  the  summer  of  1902  a  strike,  beginning  with  a  labor 
union  known  as  the  United  Mine  Workers  of  America,  spread 
through  nearly  the  whole  of  the  anthracite  coal  region  in  Penn- 
sylvania. As  time  progressed  it  was  accompanied  with  increasing 
disorder  and  violence  on  the  part  of  the  strikers  and  their  sym- 
pathizers, so  that  threats  and  intimidation  not  only  of  men  but  of 
their  women  and  children,  rioting,  bridge  burning,  stoning  and  in- 
terference with  railroad  trains,  destruction  of  property  and  killing 
of  non-union  workmen  became  of  frequent  occurrence.  The  com- 
munities affected  were  either  in  secret  sympathy  with  these  acts 
or  lacked  the  courage  to  put  an  end  to  them. 

Among  the  places  where  the  disorder  was  greatest  was  Shenan- 
doah in  Schuylkill  county.  There  the  police  and  the  sheriff  in  at- 
tempting to  preserve  the  peace  were  overpowered  and  beaten  by 
mobs  of  strikers,  and  several  citizens  killed.  The  sheriff  having 
called  upon  the  governor,  the  latter  first  ordered  out  a  portion  of 
the  militia  and  subsequently  on  further  call,  the  entire  division  of 
the  National  Guard,  on  October  6,  1902,  by  General  Order  No.  39. 

The  text  of  this  order  which  is  important  is  as  follows:  "In 
certain  portions  of  the  counties  of  Luzerne,  Schuylkill,  Carbon, 
Lackawanna,  Susquehanna,  Northumberland  and  Columbia,  tumult 
and  riot  frequently  occur  and  mob  law  reigns.  Men  who  desire 
to  work  have  been  beaten  and  driven  away  and  their  families 
threatened.  Railroad  trains  have  been  delayed  and  stoned,  and 
tracks  torn  up.  The  civil  authorities  are  unable  to  maintain  order 
and  have  called  upon  the  governor  and  commander-in-chief  of  the 
National  Guard  for  troops.  The  situation  grows  more  serious  each 
day.  The  territory  involved  is  so  extensive  that  the  troops  now 
on  duty  are  insufficient  to  prevent  all  disorder.     The  presence  of 


556  LIABILITY  OP  OFFICERS. 

the  entire  division,  National  Guard  of  Pennsylvania,  is  necessary 
in  these  counties  to  maintain  the  public  peace.  The  major  general 
commanding  will  place  the  entire  division  on  duty^  distributing 
them  in  such  localities  as  will  render  them  most  effective  for  pre- 
serving the  public  peace.  As  tumults,  riots,  mobs  and  disorder 
usually  occur  when  men  attempt  to  work  in  and  about  the  coal 
mines,  he  will  see  that  all  men  who  desire  to  work,  and  their  fam- 
ilies, have  ample  protection.  He  will  protect  all  trains  and  other 
property  from  unlawful  interference,  will  arrest  all  persons  en- 
gaging in  acts  of  violence  and  intimidation,  and  hold  them  under 
guard  until  their  release  will  not  endanger  the  public  peace,  and 
will  see  that  threats,  intimidations,  assaults  and  all  acts  of  violence 
cease  at  once.  The  public  peace  and  good  order  will  be  preserved 
upon  all  occasions  and  throughout  the  several  counties,  and  no  in- 
terference whatsoever  will  be  permitted  with  officers  and  men  in 
the  discharge  of  their  duties  under  this  order.  The  dignity  and 
authority  of  the  State  must  be  maintained,  and  her  power  to  sup- 
press all  lawlessness  within  her  borders  be  asserted." 

Under  this  order  the  18th  Regiment,  being  part  of  the  troops 
under  command  of  Brigadier  General  Gobin,  was  stationed  in  and 
near  Shenandoah.  Several  houses  occupied  by  non-union  men  had 
been  dynamited  and  attempts  made  upon  others.  On  October  8, 
therefore.  General  Gobin  issued  the  following  order:  "At  5:30 
P.  M,  a  detail  of  one  corporal  and  six  men  should  be  put  at  the 
house  of  Barney  Bucklavage,  No.  1118  West  Coal  street ;  this  house 
was  dynamited  on  the  night  of  October  6th  and  is  occupied  by  a 
woman  and  four  small  children,  and  for  the  present  I  deem  it  best 
to  guard  it;  my  instructions  to  the  guards  have  been  that  they 
shall  keep  a  sentry  at  the  front  door  sitting  inside  the  house  with 
the  door  ajar,  and  one  sentry  sitting  just  outside  the  rear  door 
under  the  porch,  and  if  any  attempt  is  made  to  dynamite  them, 
or  they  are  shot  at,  or  stoned,  or  any  suspicious  characters  prowl 
around,  particularly  in  the  rear  of  the  house,  who  fail  to  halt  when 
directed  by  the  guard,  the  guard  shall  shoot,  and  shoot  to  kill." 

The  relator,  Arthur  Wadsworth,  was  a  private  in  Company  A" 
of  the  18th  Regiment,  in  service  there,  and  in  the  evening  of  Oc- 
tober 8  was  posted  as  sentry  in  the  front  yard  of  the  Bucklavage 
house,  just  outside  the  door,  with  orders  to  halt  all  persons  prowl- 
ing around  or  approaching  the  house,  and  if  the  persons  so  chal- 
lenged failed  to  respond  to  the  challenge  after  due  warning  "to 
shoot,  and  shoot  to  kill."  About  11 :30  o'clock  he  discovered  a  man 
approaching  along  the  side  of  the  road  nearest  the  house  and  called 


COMMONWEALTH  V.  SHORTALL.  557 

*'Halt."  The  man  continued  to  advance  toward  the  gate.  Wads- 
worth  called  again  "Halt."  The  man  continued  to  advance. 
Wadsworth  then  touched  the  door  and  said  ''Corporal  of  the 
guard. ' '  He  then  called  ' '  Halt ' '  and  again  * '  Halt. ' '  The  man  by 
this  time  had  opened  the  gate  and  was  coming  into  the  yard,  when 
Wadsworth,  in  accordance  with  his  orders,  fired  and  the  man, 
whose  name  was  afterwards  found  to  be  Durham,  fell  to  the  ground 
dead. 

A  coroner's  inquest  was  held  and  the  jury  found  that  "the  shoot- 
ing was  hasty  and  unjustifiable"  and  recommended  that  the  matter 
be  placed  in  the  hands  of  the  district  attorney  for  investigation. 
In  the  meantime,  on  complaint  before  a  justice  of  the  peace,  a 
warrant  had  been  issued  for  the  arrest  of  Wadsworth,  and  after 
the  return  of  the  regiment  from  service  he  was  arrested  at  his 
home  in  Pittsburg  by  the  respondent,  a  constable  of  the  borough 
of  Shenandoah.  A  writ  of  habeas  corpus  was  allowed  by  the  pre- 
siding justice  of  this  court,  and  the  commonwealth  not  making 
any  charge  higher  than  manslaughter,  the  relator  was  admitted  to 
bail,  pending  the  argument  of  the  case. 

The  issue  of  General  Order  No.  39  by  the  governor  was  a  declara-^ 
tion  of  qualified  martial  law,  in  the  affected  districts.  In  so  char- 
acterizing it  we  are  not  unmindful  of  the  eminent  authorities  who 
have  declared  that  martial  law  cannot  exist  in  England  or  the 
United  States  at  all,  or  at  least,  according  to  the  more  moderate 
advocates  of  that  view,  not  in  time  of  peace 

Order  No.  39  was,  as  said,  a  declaration  of  qualified  martial  law. 
Qualified  in  that  it  was  put  in  force  only  as  to  the  preservation  of 
the  public  peace  and  order,  not  for  the  ascertainment  or  vindica- 
tion of  private  rights,  or  the  other  ordinary  functions  of  govern- 
ment. For  these  the  courts  and  other  agencies  of  the  law  were 
still  open  and  no  exigency  required  interference  with  their  func- 
tions. But  within  its  necessary  field,  and  for  the  accomplishment 
of  its  intended  purpose  it  was  martial  law  with  all  its  powers.  The 
government  has  and  must  have  this  power  or  perish.  And  it  must 
be  real  power,  sufficient  and  effective  for  its  ends,  the  enforcement 
of  law,  the  peace  and  security  of  the  community  as  to  life  and 
property. 

When  the  mayor  or  burgess  of  a  municipality  finds  himself  un- 
able to  preserve  the  public  order  and  security  and  calls  upon  the 
sheriff  with  the  posse  comitatus,  the  latter  becomes  the  responsible 


558  -  LIABILITY   OP   OFFICERS. 

officer  and  therefore  the  higher  authority.  So  if  in  turn  the  sheriff 
finds  his  power  inadequate,  he  calls  upon  the  larger  power  of  the 
State  to  aid  with  the  military.  The  sheriff  may  retain  the  com- 
mand, for  he  is  the  highest  executive  officer  of  the  county,  and  if 
he  does  so,  ordinarily  the  military  must  act  in  subordination  to 
him.  But  if  the  situation  goes  beyond  county  control,  and  requires 
the  full  power  of  the  State,  the  governor  intervenes  as  the  supreme 
executive  and  he  or  his  military  representative  becomes  the  su- 
perior and  commanding  officer.  So  too  if  the  sheriff  relinquishes 
the  command  to  the  military,  the  latter  has  all  the  sheriff's  au- 
thority added  to  his  own  powers  as  to  military  methods. 

The  effect  of  martial  law,  therefore,  is  to  put  into  operation  the 
powers  and  methods  vested  in  the  commanding  officer  by  military 
law.  So  far  as  his  powers  for  the  preservation  of  order  and  se- 
curity of  life  and  property  are  concerned,  there  is  no  limit  but  the 
necessities  and  exigency  of  the  situation.  And  in  this  respect  there 
is  no  difference  between  a  public  war  and  domestic  insurrection. 
What  has  been  called  the  paramount  law  of  self-defense,  common 
to  all  countries,  has  established  the  rule  that  whatever  force  is 
necessary  is  also  lawful. 

There  is  no  real  difference  in  the  commander's  powers  in  a  public 
war  and  in  domestic  insurrection.  In  both  he  has  whatever  powers 
may  be  needed  for  the  accomplishment  of  the  end  but  his  use  of 
them  is  followed  by  different  consequences.  In  war  he  is  answer- 
able only  to  his  military  superiors,  but  for  acts  done  in  domestic 
territory,  even  in  the  suppression  of  public  disorder,  he  is  ac- 
countable, after  the  exigency  has  passed,  to  the  laws  of  the  land, 
both  by  prosecution  in  the  criminal  courts,  and  by  civil  action  at 
the  instance  of  the  parties  aggrieved.  On  this  all  the  authorities 
agree,  and  the  result  flows  from  the  view  that  martial  law  in  this 
sense  is  merely  an  extension  of  the  police  power  of  the  State,  and 
therefore,  as  expressed  by  Judge  Hare an  "off- 
shoot of  the  common  law  which  though  ordinarily  dormant  in 
peace,  may  be  called  forth  by  insurrection  or  invasion."  See  Res- 
publica  V.  Sparhawk,  1  Dallas  357 ;  Mitchell  v.  Harmony,  13  How. 
(U.  S.)  115;  Ford  v.  Surget,  97  U.  S.  594,  and  English  cases  cited 
in  2  Hare  on  Const.  Law,  ch.  xli. 

Coming  now  to  the  position  of  the  relator,  in  regard  to  respon- 
sibility, we  find  the  law  well  settled 


COMMONWEALTH  V.  SHORTALL.  559 

The  cases  in  this  country  have  usually  arisen  in  the  army  and 
been  determined  in  the  United  States  courts.  But  by  the  Articles 
of  War  (art.  59)  under  the  acts  of  Congress,  officers  or  soldiers 
charged  with  offenses  punishable  by  the  laws  of  the  land,  are  re- 
quired (except  in  time  of  war)  to  be  delivered  over  to  the  civil 
(i.  e.  in  distinction  from  military)  authorities;  and  the  courts 
proceed  upon  the  principles  of  the  common  (and  statute)  law: 
31  Fed.  Repr.  711.  The  decisions  therefore  are  precedents  appli- 
cable here. 

A  leading  case  is  United  States  v.  Clark,  31  Fed.  Repr.  710.  A 
soldier  on  the  military  reservation  at  Fort  Wayne  had  been  con- 
victed by  court  martial  and  when  brought  out  of  the  guardhouse 
with  other  prisoners  at  "retreat,"  broke  from  the  ranks  and  was 
in  the  act  of  escaping  when  Clark,  who  was  the  sergeant  of  the 
guard,  fired  and  killed  him.  Clark  was  charged  with  homicide  and 
brought  before  the  United  States  district  judge,  sitting  as  a  com- 
mitting magistrate.  Judge  Brown,  now  of  the  Supreme  Court  of 
the  United  States,  delivered  an  elaborate  and  well  considered  opin- 
ion, which  has  ever  since  been  quoted  as  authoritative.  In  it  he 
said,  *  *  The  case  reduces  itself  to  the  naked  legal  proposition  whether 
the  prisoner  is  excused  in  law  in  killing  the  deceased. ' '  Then  after 
referring  to  the  common-law  principle  that  an  officer  having  cus- 
tody of  a  prisoner  charged  with  felony  may  take  his  life  if  it  be- 
comes absolutely  necessary  to  do  so  to  prevent  his  escape,  and  point- 
ing out  the  peculiarities  of  the  military  code  which  practically 
abolish  the  distinction  between  felonies  and  misdemeanors,  he  con- 
tinued, **I  have  no  doubt  the  same  principle  would  apply  to  the 
acts  of  a  subordinate  officer,  performed  in  compliance  with  his  sup- 
posed duty  as  a  soldier ;  and  unless  the  act  were  manifestly  beyond 
the  scope  of  his  authority,  or  were  such  that  a  man  of  ordinary 
sense  and  understanding  would  know  that  it  was  illegal,  that  it 
would  be  a  protection  to  him,  if  he  acted  in  good  faith  and  without 
malice. ' ' 

In  McCall  v.  McDowell,  1  Abb.  (U.  S.)  212,  where  an  action  was 
brought  by  plaintiff  against  Gen.  McDowell  and  Capt.  Douglas 
for  false  imprisonment  under  a  general  order  of  the  former  for  the 
arrest  of  persons  publicly  exulting  over  the  assassination  of 
President  Lincoln,  the  court  said,  '  *  Except  in  a  plain  case  of  excess 
of  authority,  where  at  first  blush  it  is  apparent  and  palpable  to 
the  commonest  understanding  that  the  order  is  illegal,  I  cannot 
but  think  that  the  law  will  excuse  a  military  subordinate,  when 
acting  in  obedience  to  the  order  of  his  commander,  otherwise  he  is 


560  LIABILITY  OF  OFFICERS.- 

placed  in  a  dangerous  dilemma  of  being  liable  to  damages  to  third 
persons,  or  obedience  to  the  order  or  for  the  loss  of  his  commission 

and  disgrace  for  disobedience  thereto Between  an 

order  plainly  legal  and  one  palpably  otherwise  there  is  a  wide 
middle  ground  where  the  ultimate  legality  and  propriety  of  orders 
depends  or  may  depend  upon  circumstances  and  conditions,  of 
which  it  cannot  be  expected  that  the  inferior  is  informed  or  ad- 
vised. In  such  cases  justice  to  the  subordinate  demands,  and  the 
necessities  and  efficiency  of  the  public  service  require  that  the  order 
of  the  superior  should  protect  the  inferior,  leaving  the  responsi- 
bility to  rest  where  it  properly  belongs,  upon  the  officer  who  gave 
the  command."  The  court  sitting  without  a  jury  accordingly  gave 
judgment  for  Capt.  Douglas,  though  finding  damages  against  Gen. 
McDowell. 

In  United  States  v.  Carr,  1  Woods  480,  which  was  a  case  of  the 
shooting  of  a  soldier  in  Fort  Pulaski  by  the  prisoner  who  was  ser- 
geant of  the  guard.  Woods,  J.,  afterward  of  the  Supreme  Court 
of  the  United  States,  charged  the  jury:  ** Place  yourselves  in  the 
position  of  the  prisoner  at  the  time  of  the  homicide.  Inquire 
whether  at  the  moment  he  fired  his  piece  at  the  deceased,  with  his 
surroundings  at  the  time,  he  had  reasonable  ground  to  believe,  and 
did  believe,  that  the  killing  or  serious  wounding  of  the  deceased 
was  necessary  to  the  suppression  of  a  mutiny  then  and  there  ex- 
isting, or  of  a  disorder  which  threatened  to  ripen  into  mutiny.  If 
he  had  reasonable  ground  so  to  believe,  then  the  killing  was  not 
unlawful.  But,  if,  on  the  other  hand,  the  mutinous  conduct  of  the 
soldiers,  if  there  was  any  such,  had  ceased,  and  it  so  appeared  to 
the  prisoner,  or  if  he  could  reasonably  have  suppressed  the  dis- 
order without  the  resort  to  such  violent  means  as  the  taking  of 
the  life  of  the  deceased,  and  it  would  so  have  appeared  to  a  reason- 
able man  under  like  circumstances,  then  the  killing  was  unlawful. 
But  it  must  be  understood  that  the  law  will  not  require  an  officer 
charged  with  the  order  and  discipline  of  a  camp  or  fort  to  weigh 
with  scrupulous  nicety  the  amount  of  force  necessary  to  suppress 
disorder.  The  exercise  of  a  reasonable  discretion  is  all  that  is  re- 
quired." 

In  Riggs  v.  State,  4  Cald.  85,  the  Supreme  Court  of  Tennessee 
held  to  be  correct  an  instruction  to  the  jury  that  **any  order  given 
by  an  officer  to  his  private  which  does  not  expressly  and  clearly 
show  on  its  face,  or  in  the  body  thereof,  its  own  illegality,  the 
soldier  would  be  bound  to  obey,  and  such  order  would  be  a  protec- 
tion to  him." 


COMMONWEALTH  V.  SHORTALL.  561 

These  are  the  principal  American  cases  and  they  are  in  entire 
accord  with  the  long  line  of  established  authorities  in  England. 

Applying  these  principles  to  the  act  of  the  relator,  it  is  clear  that  / 
he  was  not  guilty  of  any  crime.     The  situation  as  already  shown~7 
was  one  of  martial  law,  in  which  the  commanding  general  was  au- 
thorized to  use  as  forcible  means  for  the  repression  of  violence  as 
his  judgment  dictated  to  be  necessary.    The  house  had  been  dyna- 
mited at  night  and  threatened  again.    With  an  agent  so  destructive, 
in  hands  so  lawless,  the  duty  of  precaution  was  correspondingly 
great.    There  was  no  ground  therefore  for  doubt  as  to  the  legality  ) 
of  the  order  to  shoot.     The  relator  was  a  private  soldier  and  his 
first  duty  was  obedience.    His  orders  were  clear  and  specific,  and] 
the  evidence  does  not  show  that  he  went  beyond  them  in  his  action  J 
There  was  no  malice,  for  it  appears  affirmatively  that  he  did  not 
know  the  deceased,  and  acted  only  on  his  orders  when  the  situa- 
tion appeared  to  call  for  action  under  them.    The  unfortunate  man 
who  was  killed  was  not  shown  to  have  been  one  of  the  mob  gath- 
ered in  the  vicinity,  though  why  he  should  have  turned  into  the 
gate  is  not  known.     The  occurrence,  deplorable  as  it  was,  was  an 
illustration  of  the  dangers  of  the  lawless  condition  of  the  com- 
munity, or  of  the  minority  who  were  allowed  to  control  it,  and  must 
be  classed  with  the  numerous  instances  in  riots  and  mobs,  where 
mere  spectators  and  even  distant  non-combatants  get  hurt  without 
apparent  fault  of  their  own. 

Whenever  a  homicide  occurs  it  is  not  only  proper  but  obligatory 
that  official  inquiry  should  be  made  by  the  legal  authorities.  Such 
an  inquiry  was  had  here  at  the  coroner 's  inquest,  and  if  there  were 
any  doubt  about  the  facts  we  should  remand  the  relator  to  the  cus- 
tody of  the  constable  under  his  warrant,  for  a  further  hearing 
before  the  justice  of  the  peace.  But  there  was  no  conflict  in  the 
evidence  before  the  coroner,  and  the  commonwealth's  officer  makes 
no  claim  hare  that  anything  further  can  be  shown.  The  facts 
therefore  are  not  in  dispute,  and  the  question  of  relator's  liability 
depends  on  whether  he  had  reasonable  cause  to  believe  in  the  neces- 
sity of  action  under  his  orders.  As  said  by  Judge  Hare,  citing 
Lord  Mansfield  in  Mostyn  v.  Fabrigas,  1  Cowper  161,  "The  ques- 
tion of  probable  cause  in  this  as  in  most  other  instances,  is  one  of 
law  for  the  court.  The  facts  are  for  the  jury;  but  it  is  for  the 
judge  to  say  whether,  if  found,  they  amount  to  probable  cause." 
Hare 's  Const.  Law  919. 

In  United  States  v.  Clark,  31  Fed.  Repr.  710,  already  cited,  Mr. 
Justice  Brown  said,  **it  may  be  said  that  it  is  a  question  for  the 

36 


562  LIABILITY  OP  OPPICERS. 

jury  in  each  case  whether  the  prisoner  was  justified  by  the  circum- 
stances in  making  use  of  his  musket,  and  if  this  were  a  jury  trial 

I  should  submit  that   question    to   them but  as  I 

would,  acting  in  (that)  capacity,  set  aside  a  conviction  if  a  verdict 
of  guilty  were  rendered,  I  shall  assume  the  responsibility  of  di- 
recting his  discharge." 

This  court,  either  sitting  as  a  committing  magistrate  or  by  virtue 
of  its  supervisory  jurisdiction  over  the  proceedings  of  all  subordin- 
ate tribunals  (Gosline  v.  Place,  32  Pa.  520)  has  the  authority  and 
the  duty  on  habeas  corpus  in  favor  of  a  prisoner  held  on  a  crim- 
inal charge,  to  see  that  at  least  a  prima  facie  case  of  guilt  is  sup 
ported  by  the  evidence  against  him.  In  the  relator's  case  the  facts 
presented  by  the  evidence  are  undisputed  and  on  them  the  law  is 
clear  and  settled.  If  the  case  was  before  a  jury  we  should  be  bound 
to  direct  a  verdict  of  not  guilty  and  to  set  aside  a  contrary  verdict 
if  rendered.  It  is  therefore  our  duty  now  to  say  that  there  is  no 
legal  ground  for  subjecting  him  to  trial  and  he  is  accordingly  dis- 
charged. 

The  relator,  Arthur    Wadsworth,  is    discharged    from    further 
custody  under  the  warrant  held  by  respondent. 


:] 


4.    Liability  for  Acts  of  Subordinates. 

ROBERTSON  V.  SICHEL. 

Supreme  Court  of  the  United  States.    October,  1887. 
127  U.  S.  507. 

This  was  an  action  at  law,  brought  in  the  city  court  of  the  city 
of  New  York,  by  Emilie  Sichel,  an  infant,  by  Joseph  Sichel,  her 
guardian  ad  litem,  against  William  H.  Robertson,  collector  of  cus- 
toms for  the  port  and  collection  district  of  New  York,  and  re- 
moved by  the  defendant  into  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  New  York. 

The  object  of  the  suit  was  to  recover  damages  for  the  Joss  of  the 
contents  of  a  trunk  belonging  to  the  plaintiff,  who  was  a  passenger 
by  the  steamship  Egypt  of  the  Inman  line,  from  Liverpool  and 
arrived  at  New  York,  at  the  pier  of  the  ship,  on  the  31st  of  Janu- 
ary, 1883 Her  baggage  was  examined  on  the  dock 

and  one  trunk  was  detained  by  the  customs  officers,  who  gave  her 


ROBERTSON  V.  SICHEL.  563 

a  receipt  therefor,  signed  by  an  inspector,  which  stated  that  the 
inspector  had  sent  the  one  trunk,  for  appraisement,  to  the  public 
store,  under  a  baggage  permit.  She  was  directed  by  the  officers  to 
call,  the  next  day,  at  the  public  store  to  receive  the  trunk.  .  .  . 
The  plaintiff  demanded  the  trunk  at  the  public  store,  but  did  not 
receive  it  because  it  had  been  destroyed  by  fire,  on  the  pier  of  the 
ship,  on  the  night  of  January  31st,  1883. 

At  the  close  of  the  plaintiff's  case,  the  defendant  asked  the  court 
to  direct  a  verdict  for  him  on  the  ground  that  the  action  being  one 
for  personal  negligence,  the  plaintiff  had  not  brought  home  to  the 
collector  personally  any  connection  with  the  trunk  at  the  time  it 
was  destroyed,  and  that,  if  any  negligence  was  to  be  imputed  to 
the  subordinate  officers  of  the  customs,  such  negligence  could  not 
be  imputed  to  the  collector.  The  court  refused  to  grant  the  mo- 
tion, and  the  defendant  excepted. 

The  court  charged  the  jury,  that  if  one  of  the  subordinate  officers 
of  the  customs,  in  the  course  of  the  performance  of  his  duty,  did 
an  absolute  wrong  to  the  plaintiff,  such  as  to  take  her  trunk  from 
her  and  keep  it  from  her  when  she  wanted  it,  and  was  by  law  en- 
titled to  it,  the  defendant  would  be  liable.  The  defendant  excepted 
to  this  charge. 

The  jury  foiind  a  verdict  for  the  plaintiff  for  $459.  The  court 
ordered  that  a  certificate  of  probable  cause  be  entered,  and  on  the 
verdict,  without  costs  added,  a  judgment  was  entered  for  the 
plaintiff  for  $502.96,  to  review  which  the  defendant  brought  a 
writ  of  error. 

Mr.  Justice  Blatchpord,  after  stating  the  case,  as  above  re- 
ported, delivered  the  opinion  of  the  court. 

We  are  of  opinion  that  there  was  error  in  the  charge  of  the 
court,  and  that  the  defendant  was  not  liable  for  the  wrong,  if  any, 
committed  by  its  subordinates,  on  the  facts  of  this  case.  There 
is  nothing  in  the  evidence  to  connect  the  defendant  personally 
with  any  such  wrong.  No  evidence  was  given  that  the  officers  in 
question  were  not  competent,  or  were  not  properly  selected  for 
their  respective  positions.  The  subordinate  who  was  guilty  of 
the  wrong,  if  any,  would  undoubtedly  be  liable  personally  for  the 
tort,  but  to  permit  a  recovery  against  the  collector,  on  the  facts 
of  this  case,  would  be  to  establish  a  principle  which  would  paralyze 
the  public  service.  Competent  persons  could  not  be  found  to  fill 
positions  of  the  kind,  if  they  knew  that  they  would  be  held  liable 


664  LIABILITY  OF  OPFICEES. 

for  all  the  torts  and  wrongs  committed  by  a  large  body  of  subordi- 
nates, in  the  discharge  of  duties  which  it  would  be  utterly  im- 
possible for  the  superior  officer  to  discharge  in  person. 

This  principle  is  well  established  by  authority.  It  is  not  affected 
by  the  fact  that  a  statutory  action  is  given  to  an  importer,  to  re- 
cover back,  in  certain  cases,  an  excess  of  duties  paid  under  protest ; 
nor  by  the  fact  that  a  superior  officer  may  be  held  liable  for  unlaw- 
ful fees  exacted  by  his  subordinate,  where  lawful  fees  are  pre- 
scribed by  statute,  and  where  such  fees  are  given  by  law  to  the 
superior,  or  for  the  act  of  a  deputy  performed  in  the  ordinary  line 
of  his  official  duty  as  prescribed  by  law.  The  government  itself  is 
not  responsible  for  the  misfeasances,  or  wrongs,  or  negligences,  or 
omissions  of  duty  of  the  subordinate  officers  or  agents  employed 
in  the  public  service; 

The  head  of  a  department  or  other  superior  functionary,  is  not 
in  a  different  position.  A  public  officer  or  agent  is  not  responsible 
for  the  misfeasances  or  positive  wrongs,  or  for  the  non-feasances, 
or  negligences,  or  omissions  of  duty,  of  the  sub-agents  or  servants 
or  other  persons  properly  employed  by  or  under  him,  in  the  dis- 
charge of  his  official  duties.     Story  on  Agency,  S.  319. 

In  Keenan  v.  Southworth,  110  Mass.  474,  it  was  held,  that  a 
postmaster  was  not  liable  for  the  loss  of  a  letter,  occasioned  by 
the  negligence  or  wrongful  conduct  of  his  clerk.  The  court  said: 
**The  law  is  well  settled,  in  England  and  America,  that  the  post- 
master general,  the  deputy  postmasters,  and  their  assistants  and 
clerks,  appointed  and  sworn  as  required  by  law,  are  public  officers, 
each  of  whom  is  responsible  for  his  own  negligence  only,  and  not 
for  that  of  any  of  the  others,  although  selected  by  him  and  sub- 
ject to  his  orders." 

The  very  question  here  involved  came  before  the  Circuit  Court 
of  the  United  States  for  the  Southern  District  of  New  York,  in 
the  case  of  Brissac  v.  Lawrence,  2  Blatchford  121,  in  June,  1850. 
The  defendant  was  the  collector  of  the  port  of  New  York.  Im- 
ported goods  belonging  to  the  plaintiff  had  been  deposited  in  a 
custom-house  warehouse,  and  were  either  lost  or  mislaid  there,  or 
were  delivered  to  some  person  not  entitled  to  them.  At  the  trial 
it  was  sought  to  show  carelessness  on  the  part  of  the  defendant, 
as  the  head  of  the  custom-house  department,  in  the  manner  in 
which  the  books  of  the  warehouse  were  kept,  and  also  that  the 
book-keeper  was  a  person  of  intemperate  habits  and  unfit  for  the 
situation.    On  the  other  hand,  it  was  proved  that  the  books  were 


ROBINSON  V.  ROHR.  565 

kept  in  conformity  with  the  mode  usually  adopted  at  the  time  for 
keeping  books  of  that  kind;  that  the  intemperate  book-keeper  had 
been  discharged ;  and  that,  during  a  period  of  nineteen  months,  out 
of  two  hundred  thousand  packages  of  goods  that  had  been  re- 
ceived at  the  warehouse  in  question,  only  two  packages  had  been 
lost.  Mr.  Justice  Nelson,  in  charging  the  jury,  submitted  to 
them  the  question  whether  the  collector  had  been  guilty  of  per- 
sonal negligence  in  respect  to  the  goods.  In  the  course  of  the 
charge,  the  court  said:  ''The  collector  is  not  personally  responsi- 
ble for  the  negligence  of  his  subordinates  in  the  custom-house  de- 
partment, and,  therefore,  he  is  not  responsible  for  the  negligence 

of  persons  employed  in  the  warehouse  department 

In  order  to  charge  the  defendant  with  the  loss,  it  is  necessary  that 
the  plaintiffs  should  satisfy  you,  by  affirmative  and  responsible 
testimony,  that  the  collector  was  personally  guilty  of  negligence  in 
the  discharge  of  his  duty,  either  by  misdeed  or  by  omission.  .  . 
.  .  .  This  is  a  suit  against  the  collector,  who  did  not  have 
charge  of  the  goods,  and,  in  order  to  render  him  liable,  you  must 
find  him  to  have  been  guilty  of  personal  neglect,  misfeasance  or 

wrong In  view  of  the  fact  that  the  collector  of 

New  York  has  charge  of  all  the  business  from  which  two-thirds  of 
all  the  revenue  of  the  United  States  is  collected,  and  has  thou- 
sands of  subordinates,  and  upon  the  evidence  that  only  one  pack- 
age out  of  every  one  hundred  thousand  which  passed  through  the 
hands  of  those  subordinates  has  been  lost,  it  is  strange  that  this 
case  has  been  so  urgently  pressed,  with  the  idea  that,  upon  any 
principle  of  equity,  much  less  of  law,  there  could  be  any  liability 
on  the  part  of  the  collector."  The  jury  found  a  verdict  for  the 
defendant.  See  also.  United  States  v.  Brodhead,  3  Law  Reporter 
95;   Wharton  on  Agency,  §  550. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  case  is 
remanded  to  that  court  with  a  direction  to  grant  a  new  trial. 


ROBINSON  V.  ROHR. 

Supreme  Court  of  Wisconsin.    February,  1889. 
73  Wis.  436. 

Appeal  from  the  Circuit  Court  for  Jefferson  County. 
Action  to  recover  damages  for  personal  injuries  alleged  to  have 
been  caused  by  the  negligence  of  the  defendants  and  their  em- 


566  LIABILITY  OF  OFFICERS. 

ployees.  The  seven  defendants  who  answered  the  complaint  con* 
stituted  the  board  of  street  commissioners  of  the  city  of  Water- 
town.  The  city  was  made  a  defendant,  but  did  not  answer  or 
appear  in  the  action.  The  facts  are  sufficiently  stated  in  the  opin- 
ion. The  plaintiff  appeals  from  a  judgment  in  favor  of  all  the 
defendants  except  the  city. 

Orton,  J.  The  above  defendant,  William  Rohr,  and  six  others 
are  charged  in  the  complaint  as  follows:  They  were  constructing 
and  repairing  stone  piers  and  abutments  under  the  Main-Street 
bridge  over  the  Rock  River,  in  the  city  of  Watertown,  and  there 
was  standing  in  an  upright  position  on  said  bridge  a  large  and 
heavy  hoisting  machine,  known  as  a  derrick,  which  was  placed 
there  by  them,  and  before  that  day  had  been  used  by  them  in  re- 
pairing and  constructing  said  piers  and  abutments.  The  plaintiff 
was  walking  along  upon  that  portion  of  the  bridge  which  was  set 
apart  for  persons  traveling  on  foot,  and  through  the  carelessness 
and  negligence  of  the  defendants,  their  agents,  servants  and  em- 
ployees, said  derrick  was  allowed  to  fall  across  and  upon  said 
bridge,  and  upon  the  plaintiff,  while  she  was  walking  along  as  a 
traveler  on  said  highway  bridge,  and  without  fault  on  her  part; 
whereby  she  was  greatly  hurt,  bruised  and  injured. 

The  defendants  by  answer  admit  that  the  piers  and  abutments  of 
said  bridge  were  being  constructed  and  repaired,  but  deny  that 
they  were  constructing  or  repairing  the  same,  and  deny  that  it 
was  through  their  fault  or  that  of  their  agents,  servants,  or  em- 
ployees, that  the  derrick  fell  upon  the  plaintiff,  and  that  she  was 
greatly  injured  thereby,  or  that  she  received  any  injuries  by  rea- 
son of  their  negligence  or  that  of  their  agents,  servants,  or  em- 
ployees, and  deny  that  the  plaintiff  was  without  fault,  and  avow 
that  her  own  negligence  contributed  to  her  injury.  They  allege 
that  said  bridge  had  been  out  of  repair  for  some  time,  and  needed 
repair  and  reconstruction;  and  that  as  the  board  of  street  com- 
missioners of  said  city,  in  its  collective  and  legislative  capacity, 
they  had  duly  let  the  work  of  repairing  and  constructing  said 
piers  and  abutments  to  competent  persons  to  do  that  work,  and  the 
said  persons  were  then  engaged  in  the  due  prosecution  of  said 
work,  exercising  due  and  proper  caution  in  operating  the  said 
derrick. 

The  facts  in  respect  to  said  mason-work  on  the  piers  and  abut- 
ments, stated  in  respondents'  brief  and  proved  on  the  trial,  were 
as  follows:  The  clerk  of  the  city  was  directed  by  the  defendants, 
in  accordance  with  the  requirement  of  sec.  3  of  subch.  9  of  the 


ROBINSON  V.  ROHR.  567 

city  charter^  in  respect  to  all  such  work,  to  advertise  for  proposals 
for  doing  the  mason-work  and  furnishing  materials  for  the  bridge 
according  to  the  plans  and  specifications  adopted  by  them  as  the 
board  of  street  commissioners,  to  be  received  up  to  a  certain  date ; 
and  on  that  day  the  proposal  of  one  Charles  Baxter  for  doing  said 
work  and  furnishing  materials  was  accepted  by  them,  and  they 
directed  a  contract  to  be  entered  into  with  him  according  to  said 
proposal,  and  that  the  said  work  be  let  to  him,  he  being  the  lowest 
bidder  for  the  same.  But  before  any  contract  was  entered  into 
with  him,  and  before,  as  they  ascertained,  he  had  acquired  any 
rights  in  the  same,  by  resolution  of  the  defendants  as  such  board 
the  whole  matter  was  left  open  and  undisposed  of  for  their  future 
action.  Their  committee  to  whom  the  matter  had  been  referred, 
reported  plans  and  specifications  of  said  mason-work  and  mate- 
rials, and  recommended  that  said  work  and  furnishing  materials 
be  done  by  themselves,  under  the  supervision  of  their  committee 
on  streets  and  bridges,  and  that  a  superintendent  be  appointed,  and 
said  resolution  was  accordingly  adopted  by  them.  In  this  manner 
the  work  upon  said  bridge  commenced  and  was  carried  on  by  the 
defendants  through  their  superintendent  and  other  persons  em- 
ployed by  them,  and  under  the  supervision  of  their  committee,  up 
to  the  time  the  plaintiff  was  injured  by  the  falling  of  the  derrick 
by  the  negligence  of  their  servants.  No  contract  was  ever  let  to 
any  one  to  do  said  work  or  to  furnish  materials  for  the  same,  but 
the  defendants  did  the  work,  instead  of  a  contractor  obtained  ac- 
cording to  the  requirement  of  the  charter  as  the  lowest  bidder  for 
the  same.  On  these  facts  the  Circuit  Court  directed  a  verdict  for 
the  defendants,  except  the  city  of  Watertown. 

It  will  be  seen  that  the  facts  proved  do  not  support  the  answer 
as  to  letting  the  work  to  other  persons.  It  may  be  said  here  that 
all  the  authorities  cited  by  the  learned  counsel  of  the  respondents 
have  application  only  to  the  case  made  by  the  answer,  and  in  no 
respect  to  that  made  by  the  facts  proved.  The  same  elementary 
authorities  cited  by  them  make  the  very  distinction  which  here 
exists  between  the  answer  and  the  proofs.  The  board  of  street 
commissioners,  when  they  determined  upon  the  work  and  adopted 
the  plans  and  specifications  of  it,  acted  as  public  oflScers,  exercising 
judicial  and  legislative  power,  and  they  are  not  amenable  to  any- 

*Ch.  233,  Laws  of  1865,  sec.  3,  subch.  9,  is  as  follows:  "All  work  for 
the  city  of  either  ward  thereof  shall  be  let  by  contract  to  the  lowest  re- 
sponsible bidder,  and  due  notice  shall  be  g^iven  of  the  time  and  place  of 
letting  such  contract." — Rep. 


568  LIABILITY  OF  OFFICERS. 

one  except  the  public  for  any  errors,  negligence  or  mere  mis- 
feasance in  the  matters  within  their  jurisdiction.  In  this  case 
they  are  not  charged  with  any  dereliction  in  these  respects.  But 
when,  after  adopting  the  plans  and  specifications,  they  undertake 
to  carry  them  out  practically  and  do  the  work  themselves,  and  em- 
ploy agents  and  servants  to  execute  the  plans  and  specifications 
manually,  then,  if  they  are  acting  as  officers  at  all,  they  are  merely 
ministerial  officers,  and  not  judicial  or  legislative,  and,  according 
to  the  same  authorities,  are  liable  to  third  persons  for  their  negli- 
gence or  misfeasance,  or,  as  the  authorities  say,  as  public  officers, 
they  acted  in  a  ministerial  capacity,  and  are  therefore  liable. 
Cooley  on  Torts,  339-376.  If,  as  public  officers,  they  owe  only  a  ^ 
duty  to  the  public  and  are  not  liable  to  persons,  yet,  if  they  so/ 
act  as  to  owe  a  duty  to  individuals,  then  their  negligence  therein  / 
is  an  individual  wrong  which  may  be  redressed  by  private  action.  / 
In  this  case  the  defendants  owed  a  duty  to  the  traveling  public, 
and  to  the  plaintiff  while  traveling  over  the  bridge,  to  look  out 
for  her  personal  safety,  while  they  were  managing  the  work 
through  their  servants.  This  is  not  a  public,  but  a  private,  duty, 
they  must  discharge  properly  or  be  liable  to  those  injured  by  their 
negligence.  As  public  officers,  acting  for  the  public  alone,  they 
are  exempt  from  personal  liability.  The  doctrine  of  respondeat 
superior  does  not  apply  to  such.  But  if,  as  the  authors  say,  they 
engage  in  some  special  employment,  and  their  duties  are  of  a  more 
private  character,  and  concern  individuals  as  well  as  the  public, 
they  are  amenable  to  private  actions.  Whart.  Neg.  §  284 ;  Shearm. 
&  Redf.  §§  166,  167.  This  distinction  is  plainly  marked  and 
easily  applied.  The  authorities  cited  by  the  learned  counsel  of  the 
respondents  apply  only  to  the  first  class,  and  therefore  are  not 
applicable  to  this  case; 

This  is  sufficient  as  to  the  principle  which  governs  this  case, 
treating  the  defendants  as  officers  as  well  as  operatives. 

Whenever  a  person  sued  sets  up  a  defence  that  he  was  an  officer 
of  the  government  acting  under  color  of  law,  it  plainly  devolves 
upon  him  to  show  that  the  law  which  he  invokes  authorizes  the 
particular  act  in  question  to  be  done,  and  that  he  acted  in  good 
faith.  Tweed's  Case,  16  Wall.  504.  But  where  the  issue  is  negli- 
gence, motives  or  good  faith  are  immaterial.  Hoover  v.  Barkhoof, 
44  N.  Y.  113.  Where  an  officer  injures  another  while  performing 
ministerial  duties,  he  is  liable.    Mills  v.  Brooklyn,  32  N.  Y.  489. 


PEOPLE  EX  EEL.  KELLOGG  V.  SCHUYLER.  569 

For  a  personal  injury  caused  by  the  negligence  of  several  per- 
sons they  are  severally  or  jointly  liable.  Creed  v.  Hartmann,  29 
N.  Y.  591;  Peoria  v.  Simpson,  110  111.  294;  Wright  v.  Compton, 
53  Ind.  337;  State  ex  rel.  Reynold  v.  Babcock,  42  Wis.  138. 
These  general  propositions  are  indisputable,  and,  with  the  authori- 
ties, are  taken  from  the  brief  of  the  learned  counsel  of  the  appel- 
lant.    We  conclude,  therefore,  that  the  plaintiff  had  a  right  to 

recover  against  the  defendants and  that  the  court 

erred  in  directing  a  verdict  in  their  favor. 

By  the  Court.  The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  remanded  for  a  new  trial. 

A  motion  for  a  rehearing  was  denied  February  19,  1889. 

Other  instances  of  actions  in  tort  against  officers  in  this  collection  are 
Klnneen  v.  Wells,  144  Mass.  497,  denial  of  elective  franchise;  Page  v. 
Staples,  13  R.  I.  306,  false  imprisonment;  Bell  v.  Pierce.  51  N.  Y.  12; 
Mygatt  V.  Washburn,  15  N.  Y.  316,  unlawful  tax  assessment;  Bergen  v. 
Clarkson,  6  N.  J.  L.  468,  unlawful  distraint  of  property;  Lawton  v.  Steele, 
119  N.  Y.  226;  Fields  v.  Stokely,  99  Pa.  St  306;  Raymond  v.  Fish,  51  Conn. 
SO,  alleged  unlawful  abatement  of  nuisances,  all  supra.  See  also  Luther 
V.  Borden,  7  Hun.  (U.  S.)  1;  Little  v.  Barreme,  2  Cranch.  (U.  S.)  170; 
Kilboum  v.  Thompson,  103  U.  S.  168. 


5.    Liability  to  Third  Persons  on  Official  Bond. 

THE  PEOPLE  EX  REL.  KELLOGG  V.  SCHUYLER. 

Court  of  Appeals  of  New  York.    December,  1850. 
4  New  York  173. 

Gardiner,  J.  The  only  question  presented  by  the  pleadings  is 
whether  the  sheriff  and  his  sureties  are  liable  upon  his  official 
bond,  for  a  trespass  committed  by  the  former  in  taking  the  goods 
of  the  relator,  in  an  attempt  to  execute  regular  and  valid  process, 
issued  against  the  property  of  another. 

The  bond  was  in  form  to  the  people  of  the  state ;  it  was  in  effect 
a  security,  not  only  to  suitors,  who  might  have  a  direct  interest 
in  the  action  of  the  sheriff,  but  to  every  citizen  who  might  be  in- 
jured by  his  official  misconduct.  Before  and  at  the  time  of  the 
alleged  trespass,  Schuyler  was  sheriff*  of  the  county  of  Rensselaer. 
As  a  public  officer,  the  attachment  in  question  was  necessarily  and 


570  LIABILITY  OP  OFFICERS. 

lawfully  delivered  to  and  received  by  him.     He  assumes  to  levy, 
and  draw  up  his  inventory  as  sheriff;  as  sheriff  he   rightfully 
summoned  a  jury,  to  determine  the  title  to  the  property  seized, 
and  subsequently,  in  his  official  character,  received  an  indemnity] 
and  detained  the  goods,  in  opposition  to  the  verdict.     He  received 
the  attachment,  therefore,  not  colore  officii,  but  in  virtue  of  his 
office.    His  sureties  undertook  "that  he  should  faithfully  execute" 
the  process.     If  he  had  "in  all  things"  performed  his  duty,  he 
would  have  seized  the  goods  of  Fay  or  returned  the  writ,  instead 
of  which  he  levied  on  the  goods  of  Batcheller,  as  the  property  of 
the   defendant   in   the    attachment.      Upon    principle,    and    upon 
grounds  of  public  policy,  it  seems  to  me,  that  the  responsibility 
of  his  sureties  should  be  different  from  those  they  would  incur, 
if  the  sheriff  had  entered  upon  the  premises  of  the  relator,  and 
removed  his  goods  without  any  process  whatever.    In  the  last  case 
supposed,  the  sheriff  would  act  in  his  own  right,  and  might  be 
resisted  as  any  other  wrongdoer.    In  the  one  before  us,  he  was  pu£^ 
in  motion  by  legal  authority,  invoked  in  behalf  of  others,  and/ 
could  command  the  power  of  the  county  to  aid  him  in  its  execu-\ 
tion.     Respect  for  the  process  of  our  courts,  and  for  the  official/ 
character  of  the  sheriff,  if  it  did  not  forbid  forcible  opposition 
(which  must  have  been  unavailing),  is  incompatible  with  the  no- 
tion of  making  resistance  indispensable  as  a  means  of  protection. 
This  must  be  the  alternative,  if  those  who  are  thus  aggrieved  are 
driven  to  rely  exclusively  upon  the  responsibility  of  the  officer, 
who,  as  in  this  case,  may  be  wholly  insolvent. 

It  was,  however,  assumed  by  Judge  Cowen,  in  Ex  parte  Reed, 
(4  Hill,  573,)  that  no  such  distinction  was  recognized  by  our  law, 
and  that  in  neither  case  would  the  sheriff  or  his  sureties  be  liable 
upon  his  official  bond.  He  remarks,  * '  that  the  words  of  the  obliga^ 
tion  cannot  be  extended  beyond  nonfeasance  or  misfeasance,  ini 
respect  to  acts  which  by  law  he  is  required  to  perform  as  sheriff.  LD 
This  may  be  admitted:  but  in  the  case  then  before  the  court,  and 
in  the  present,  the  sheriff  as  the  executive  officer  of  his  county, 
received  a  regular  process  issued  by  a  court  of  competent  juris- 
diction, by  which  he  was  commanded  to  act  as  sheriff.  If  he  had 
neglected  to  act  without  some  legal  excuse,  it  would  have  been  a 
nonfeasance;  if  he  had  acted  wrongfully  in  attempting  to  obey 
the  mandate,  it  would  have  been  a  misfeasance  "in  respect  to  acts 
which  he  was  required  to  perform  as  sheriff."  The  distinction  is 
between  a  case  in  which  a  duty  is  imposed  at  law  upon  an  officer 
as  such,  which  he  is  bound  by  his  peril  faithfully  to  discharge,  and 


PEOPLE  EX  REL.  KELLOGG  V.  SCHUYLER.  571 

in  which  there  is  no  such  obligation.  Where  the  duty  exists,  and 
it  is  neglected,  or  performed  in  an  improper  manner,  the  sureties 
upon  principle  should  be  liable,  otherwise  not. 

The  learned  judge,  in  the  case  referred  to  says:  "That  the 
words  of  the  obligation  are  operative  for  the  purpose  of  obliging 
the  sheriff  to  act  properly,  in  all  those  things  which  come  within 
the  scope  of  his  power  or  duty. ' '  The  answer  to  this  suggestion  is^ 
that  it  is  within  the  power  of  every  officer  receiving  process,  to' 
execute  it  or  to  abstain  from  its  execution,  for  reasons  which  he 
can  assign,  and  which  the  law  will  recognize;  and  with  this  power 
it  is  within  "the  scope  of  his  duty  to  act  properly,  if  he  elects  t^ 
act  under  it  at  all."  It  is  true,  as  Judge  Cowen  remarks,  "that 
a  trespass  is  not  the  faithful  performance  of  the  office,  or  any 
performance  at  all."  It  is,  however,  equally  true,  that  the  faith- 
ful performance  of  the  office  was  the  duty  imposed  by  law  upon 
the  sheriff,  and  guaranteed  by  his  sureties.  They  now  insist,  in 
bar  of  the  action,  not  that  the  sheriff  fulfilled  this  obligation,  but 
that  in  violating  it  he  committed  a  trespass.  Again,  the  learned 
judge  remarks,  "there  being  no  authority,  there  is  no  office,  noth- 
ing official. "  If  by  this  we  are  to  understand,  that  there  being  no 
authority  for  the  act  complained  of  as  a  breach  of  official  duty, 
there  was  no  office,  and  nothing  official,  the  argument,  if  sound, 
would  preclude  a  recovery  in  any  case  against  the  sureties.  If  an 
authority  could  be  shown,  their  defence  would  be  complete;  if 
there  was  none,  the  act  would  be  extra  official,  and  not  within  the 
scope  of  their  undertaking. 

In  Ex  parte  Chester,  (5  Hill,  555,)  the  court  directed  the  prose 
cution  of  the  official  bond  of  the  sheriff  and  his  sureties,  in  conse 
quence  of  a  false  return  by  the  former.  This  was  a  misfeasance, 
for  which  the  sheriff  was  liable  in  an  action  of  tort.  It  might 
have  been  argued  upon  the  authority  of  Ex  parte  Reed,  "that  the 
commission  of  a  tort  was  not  the  faithful  performance  of  his  office 
as  sheriff,  or  any  performance  at  all."  The  objection  was  as  ap- 
plicable in  one  case  as  the  other.  It  is  no  answer  to  say  that  in 
Ex  parte  Chester,  a  return  of  the  execution  was  authorized  and 
required  by  law,  and  the  misconduct  consisted  in  doing  the  re- 
quired act  in  an  improper  manner.  The  fi.  fa.  in  Ex  parte  Reed, 
and  the  attachment  in  this  case,  authorized  and  required  the  sher- 
iff to  levy  upon  property;  in  both  cases  the  seizure  of  the  prop- 
erty of  third  persons  was  doing  the  required  service  in  an  improper 
manner.  In  each  of  the  above  cases,  the  specific  acts,  which  gave 
the  right  of  action  against  the  officer,  were  unauthorized.     Other- 


572  LIABILITY  OF  OFFICERS. 

wise  there  could  have  been  no  misfeasance.  In  each,  however,  the 
sheriff  was  directed  by  legal  process  to  perform  an  official  act  of 
the  same  character,  of  that  which  was  the  subject  of  complaint. 
In  each  he  assumed  to  discharge  a  duty  pertaining  to  his  office,  by 
means  which  the  law  did  not  authorize  or  permit. 

That  irregularities  of  the  kind  mentioned  do  not  wholly  deprive 
the  proceeding  of  an  official  character,  is  manifest  from  the  con- 
struction which,  in  this  country  and  abroad,  has  been  given  to 
statutes  framed  for  the  protection  of  public  officers,  in  reference 
to  pleading,  notice  and  venue.  The  English  statutes  and  our  own 
refer  to  acts  done  "virtute  officii,"  and  yet  they  have  uniformly 
been  held  to  extend  to  acts  of  misfeasance,  whether  the  remedy 
against  the  officer  was  in  case  or  trespass.  {Straight  v.  Gee,  2 
Stark  Rep.  448;  Reed  v.  Tlwmpson;  Weller  v.  Toke,  9  East.  364; 
Morgan  v.  Palmer,  2  Barn.  &  Cres.  729 ;  Secly  v.  Birdsall,  15  John. 
268;   1  Mass.  Rep.  530.) 

But  we  are  not  without  direct  authority  on  this  question.  In 
Skinner  v.  Phillips,  (4  Mass.  Rep.  69),  the  suit  was  scire  facias 
against  a  sheriff  and  his  sureties  reciting  the  official  bond  of  the 
former,  the  condition  of  which  was,  "that  he  should  faithfully 
execute  the  duties  of  his  office."  The  declaration  set  forth  a  judg- 
ment against  the  sheriff  in  favor  of  the  plaintiff  for  damages  by 
and  through  misfeasance  and  malfeasance  of  the  sheriff.  On  de- 
murrer to  the  declaration,  it  was  determined  by  the  court,  C.  J. 
Parsons  delivering  the  opinion,  "that  any  party  injured  by  the 
malfeasance  of  the  sheriff  or  his  deputy,  was  entitled  to  relief  upon 
the  bond." 

In  Archer  v.  Noble,  (3  Greenl.  418),  a  constable  had  given  a 
bond  with  sureties  '  *  for  the  faithful  performance  of  his  duties  and 
trust,  as  to  all  processes  by  him  served  or  executed. ' '  It  was  held, 
that  if  he  seized  the  good  of  A.  under  an  execution  against  B.  it 
was  not  merely  a  private  trespass,  but  a  breach  of  his  bond.  In 
Harris  v.  Hanson,  (11  Maine,  241),  it  was  decided,  that  the  taking 
of  the  property  of  one,  by  a  coroner,  upon  a  suit  against  another, 
was  a  malfeasance  in  office,  constituting  a  breach  of  this  bond 
given  "for  the  faithful  performance  of  the  duties  of  his  office." 
In  Cormack  v.  Commonwealth,  (5  Binney,  184),  the  sureties  of  the 
sheriff  were  held  liable  on  a  similar  bond,  where  the  goods  of  A. 
were  taken  upon  a  fi.  fa.  against  B.  In  Forsyth  v.  Ellis,  {A  J.  J. 
Marsh,  229),  the  precise  question  was  determined  the  same  way 
in  Kentucky;  and  in  Commonwealth  v.  Stockton,  (5  Monroe,  192). 


PEOPLE  EX  REL.  KELLOGG  V.  SCHUYLER.  573 

In  this  State  the  decision  in  Ex  parte  Chester  cannot  upon  princi- 
ple be  reconciled  with  the  previous  one  in  Ex  parte  Reed.  The 
question  must  have  been  deemed  an  open  one,  or  permission  would 
not  have  been  granted  to  the  plaintiff  to  prosecute  this  suit,  by 
the  same  court  who  refused  it  in  Ex  parte  Reed.  The  point  was 
presented  in  each  case  upon  motion,  and  the  decisions  are  directly 
opposed  to  each  other.  We  are  not,  therefore,  concluded  by  the 
action  of  our  own  courts.  The  adjudications  of  the  highest  courts 
in  at  least  three  of  the  neighboring  states,  sustain  the  action.  The 
defendants  hav6  referred  to  no  case  beyond  this  state,  to  the  con- 
trary. The  weight  of  authority,  and  as  it  seems  to  me,  a  fair  con- 
struction of  the  obligation  of  the  defendants,  are  both  in  favor  of 
the  plaintiff. 

There  is  another  consideration  which  is  deserving  of  attention. 
The  action  of  trespass  against  sheriff  for  the  seizure  of  property 
in  the  execution  of  legal  process,  is  sui  generis.  It  is  regarded  by7 
the  law  in  many  instances,  as  a  means  of  determining  the  title  to/ 
property,  rather  than  in  the  light  of  an  ordinary  trespass.  Good 
faith  upon  the  part  of  the  ofl&cer  is  presumed,  and  he  may  conse- 
quently require  and  receive  indemnity  before  proceeding  to  the 
final  execution  of  the  writ.  (8  John  R.  185;  8  Cowen,  67.)  The 
form  of  the  indemnity  in  this  case  was  prescribed  by  statute,  and 
the  sheriff  made  the  sole  judge  of  its  sufficiency.  (2  R.  8.  4, 
§§  10,  11.)  His  sureties  on  payment  of  the  judgment  against  their 
principal,  would  be  entitled  to  subrogation,  and  to  the  benefit  of 
his  security;  while  no  provision  is  made  for  its  assignment  to 
those  who  have  been  deprived  of  their  property.  The  omission,  I 
grant,  will  not  enlarge  the  undertaking  of  the  sureties.  But  it 
shows,  what  is  indeed  manifest  from  the  whole  structure  of  the 
statute,  that  its  framers  supposed  that  in  all  his  proceedings  un- 
der it,  the  sheriff  was  in  an  important  sense  acting  officially;  that 
the  idea  did  not  occur  to  them,  that  in  making  an  erroneous  seiz- 
ure under  the  attachment,  the  sheriff  divested  himself  of  all  the 
insignia  of  his  office,  to  be  resumed  when  he  took  a  bond  and  de- 
tained the  property.  This  is  the  view  of  the  defendants.  We  are 
inclined  to  regard  the  original  taking  as  a  misapplication  by  the 
sheriff  of  the  authority  of  his  office,  for  which  his  sureties  are  re- 
sponsible. 

The  judgment  of  the  supreme  court  must  be  reversed. 

Bronson,  Ch.  J.,  and  Jewett,  Harris  and  Taylor,  Justices,  con- 
curred. 

Pratt,  J.   (dissenting).     In  the  examination  of  this  case  it  be- 


574  LIABILITY  OP  OPPICERS. 

comes  necessary,  in  the  first  place,  to  ascertain  the  precise  nature 
of  the  covenant  into  which  the  sureties  of  the  sheriff  have  entered, 
in  order  that  we  may  be  the  better  prepared  to  examine  the  ques- 
tion whether  their  covenant  has  been  broken.     The  condition  as 
presented  in  the  statute,  which  is  precisely  the  same  as  that  set 
out  in  the  pleadings,  is  in  these  words :  that  the  sheriff  '  *  shall  well 
and  faithfully  in  all  things,  perform  and    execute   the   office   of 
sheriff  of  said  county,  during  his  continuance  in  said  office,  by 
virtue  of  the  said  election,  without  fraud,  deceit  or  oppression." 
(1  JK.  aS.  378.)    The  statute  also  provides  that  "whenever  a  sheriff 
shall  have  become  liable  for  the  escape  of  any  prisoner,  committed  | 
to  his  custody,  or  whenever  he  shall  have  been  guilty  of  any  de- 1 
fault  or  misconduct  in  his  office,  the  party  injured  may  apply  to/ 
the  supreme  court  for  leave  to  prosecute  the  official  bond  of  such 
sheriff."     (2  B.  8.  476.) 

It  is  clear  to  me  that  the  sureties  under  this  bond  guarantee  the 
public  against  official  delinquency  on  the  part  of*  the  sheriff,  and 
that  the  guaranty  extends  to  that  alone.  That  in  no  case  except 
for  an  escape  can  they  be  made  liable,  unless  it  be  proved  that  the 
sheriff  has  violated  some  duty  resting  upon  him  as  a  public  officer; 
and  in  all  cases  except  when  the  action  has  been  brought  for  an 
escape,  it  is  a  perfect  defence  on  their  part  if  it  appear  that  the 
sheriff  exercised  due  diligence;  that  he  was  guilty  of  no  want  of 
fidelity  to  his  trust.  The  case  of  an  escape  is  an  exception.  It  is 
made  so  by  the  statute,  and  therefore  no  degree  of  diligence  will 
excuse  them 

It  is  an  elementary  principle,  that  the  undertaking  on  the  part 
of  the  sureties,  is  not  to  be  extended  by  construction,  one  iota  be- 
yond its  terms,  but  on  the  contrary  it  is  to  be  strictly  construed 
in  their  favor.     (18  John.  S89 ;   10  td.  180.)     The  question,  there- 
fore, in  this  case  is  not  whether  the  sheriff  has  not  done  some  act 
colore  officii  for  which  he  may  be  liable  to  an  action,  but  the  ques- » 
tion  for  our  consideration  is  whether  the  declaration  shows  any  \ 
misconduct  in  his  office;  any  want  of  fidelity  to  the  trust  reposed  / 
in  him  as  sheriff;  or  any  failure  in  his  official  duty  as  such,  by 
which  the  plaintiff  has  suffered  damage. 

Now  what  duty  has  he  violated?  or  what  negligence  or  miscon-  \ 
duct  has  he  been  guilty  of?    An  attachment  had  been  delivered  to  I 
him,  under  which  he  proceeded  to  levy  on  some  property,  supposed 
by  him  to  belong  to  the  defendant  in  the  execution.     The  relator/ 
interposed  a  claim  of  title ;  the  sheriff  summoned  a  jury  to  try  the  j 
validity  of  such  claim,  and  they  found  the  property  in  the  re-y 


PEOPLE  EX  REL.  KELLOGG  V.  SCHUYLER.  575 

lator.  A  sufficient  indemnity  was  then  tendered  to  him  by  the/ 
plaintiff  in  the  attachment,  and  the  sheriff  thereupon  detained^ 
the  property.  In  all  this  the  sheriff  followed  the  express  directions 
of  the  statute.  Had  he  deviated  from  these  directions,  he  would 
clearly  have  departed  from  his  duty,  and  made  himself  and  his 
sureties  liable  to  an  action.  (2  R.  S.  4,  §§  10,  11;  8  John.  185; 
1  Hall,  595;  8  Cowen,  67.)  How,  then,  it  may  well  be  asked,  can 
a  breach  of  duty  be  predicated  upon  an  act  by  the  sheriff,  which 
the  statute  requires  him  to  perform,  and  which,  if  he  should  neglect 
to  perform,  would  itself  constitute  a  breach  of  duty?  Are  the 
sheriff  and  his  sureties  placed  by  the  law  in  any  such  embarrassing 
dilemma?  Does  the  law  tolerate  any  such  legal  absurdity,  as  that 
an  act  is  at  the  same  time  both  a  performance  and  a  violation  of 
official  duty;  a  performaace  and  a  breach  of  the  conditions  of  a 
bond?  And  yet,  if  this  declaration  can  be  sustained  upon  this 
point,  it  must  be  upon  this  hypothesis,  however  absurd  it  may  be. 
The  question  may  be  asked,  how  then  was  the  sheriff  made  liable 
at  all?  How  could  an  action  of  trespass  be  sustained  against  him 
for  taking  property  which  a  due  discharge  of  his  official  duty  re- 
quired him  to  take?  The  answer  is,  he  was  made  liable  not  upon 
the  assumption  that  he  has  violated  his  duty  as  sheriff,  but  by 
utterly  repudiating  his  official  character,  and  bringing  an  action 
against  him  as  a  naked  trespasser.  Had  an  action  been  brought 
against  the  sheriff*  for  official  misconduct,  or  neglect  of  official 
duty,  he  could  have  defended  successfully  by  showing  the  facts 
set  out  in  this  declaration.  But  the  claimant  made  no  complaint 
of  that  character,  but  reposing  upon  the  strength  of  his  title,  makes 
that  the  issue,  and  thus  the  official  character  of  the  sheriff  in  the 
commission  of  the  act  becomes  entirely  immaterial.  Hence  the 
question  which  was  discussed  at  some  length  upon  the  argument, 
whether  the  sheriff,  in  taking  the  property,  acted  officially  or  not 
becomes  immaterial.  The  question  is  not  in  what  character  the 
sheriff  intended  to  act,  but  in  what  character  is  he  made  liable. 
If  he  is  not  made  liable  for  some  misconduct  in  his  office,  for  some 
want  of  fidelity  to  his  trust,  it  is  not  within  the  undertaking  of  his 
sureties.  Thus  I  cannot  perceive  any  difference  between  a  case  of 
this  kind,  and  one  where  the  officer  should  take  property  without 
any  process.  So  far  as  his  liability  is  concerned,  the  process 
neither  aids  or  injures  him.  The  question  tried  does  not  depend 
upon  his  good  or  ill  conduct,  whether  the  circumstances  raised  a 
strong  presumption  that  the  property  belonged  to  the  defendant 
in  the  execution  or  not. 


676  LIABILITY  OP  OFFICERS. 

.  .  .  .  Now,  as  I  have  already  said,  the  question  is:  in  what 
character  is  the  sheriff  made  liable,  and  not  in  what  character  did 
he  design  to  act  in  taking  the  property?  The  authorities  recog- 
nize a  principle  or  rule  by  which  the  acts  of  the  sheriff,  for  which 
his  sureties  may  be  held  liable,  can  be  distinguished  from  those 
acts  for  which  they  will  not  be  held  liable.  The  former  are  termed^ 
acts  done  virtute  officii,  and  the  latter  colore  officii.  The  distinc-j 
tion  is  this :  Acts  done  virtute  officii  are  where  they  are  within  the  i 
authority  of  the  officer,  but  in  doing  it  he  exercises  that  authority 
improperly,  or  abuses  the  confidence  which  the  law  reposes  in  him ; 
whilst  acts  done  colore  officii,  are  where  they  are  all  of  such  a  na-/ 
ture,  that  his  office  gives  him  no  authority  to  do  them.  (Seely  v.] 
Birdsall,  15  John.  267;  Alcock  v.  Andrews,  22  Esp.  540,  n.)  This 
distinction  is  as  old  as  the  common  law,  and  has  been  acted  upon 
and  recognized  in  numerous  cases,  some  of  which  I  shall  hereafter 
advert  to.  It  is  true,  that  in  some  cases  statutes  made  for  the  pro- 
tection of  public  officers,  have  been  extended  by  construction  to 
cases  avowedly  not  within  the  terms  of  such  statutes ;  but  they  can 
scarcely  afford  any  authority  for  departing  from  the  strict  con- 
struction of  the  undertaking  of  sureties,  for  the  purpose  of  ex- 
tending their  liability.  It  is  not  necessary  in  this  case,  to  insist, 
that  the  distinction  adverted  to  is  universally  applicable  to  the  lia- 
bility of  sureties,  upon  undertakings  similar  to  the  one  in  this 
case;  yet,  as  there  must  be  some  limit  to  their  liability,  some  line 
of  demarcation,  designating  those  acts  of  the  sheriff  to  which  their 
liability  extends,  and  beyond  which  it  does  not  extend,  it  will  be 
found  that  this  distinction  is  based  upon  correct  legal  principles, 
and  is  supported  by  an  abundance  of  authority.  In  the  one  case, 
the  inquiry  relates  entirely  to  the  official  conduct  of  the  officer, 
whether  he  has  neglected  any  duty  which  the  law  imposed  upon 
him,  or  whether  in  doing  an  act  which  the  law  requires  him  to  do, 
he  has  acted  faithfully  and  honestly;  whilst  in  the  other  case,  his 
care,  or  diligence,  or  faithfulness,  is  not  a  subject  of  inquiry  at 
all ;  the  enquiry  being  limited  exclusively  to  his  power  or  authority 
to  do  the  act. 

I  have  thus  far  examined  the  question  involved  in  this  case  upon 
principle.  Upon  authority  the  positions  which  I  have  assumed  are 
supported  by  a  decided  preponderance,  especially  in  this  state. 
Indeed,  in  this  state  I  have  not  been  able  to  find  even  a  dictum  to 
the  contrary.  The  cases  of  Ex  parte  Reed  (4  Hill,  572),  and  Ex 
parte  Martin,  referred  to  in  that  case,  are  directly  in  point.    The 


PEOPLE  EX.  REL.  KELLOGG  V.  SCHUTLEE.  577 

precise  question  was  passed  upon  in  both  cases ;  and  although  they 
were  decided  upon  motion  at  special  term,  yet  the  former  at  least 
was  decided  by  Judge  Cowen,  after  consultation  with  the  other 
judges  of  the  court.  The  case  of  The  People  v.  Spraker  and  oth- 
ers (18  John.  390),  is  also  in  point  that  the  undertaking  of  the 
sureties  is  not  to  be  extended  beyond  its  terms. 

In  Morris  v.  Van  Voast  (19  Wend.  283),  the  court  give  a  con- 
struction to  the  language  of  a  statute  similar  in  its  terms  to  that  of 
the  sheriff's  bond.  The  action  was  trespass  against  a  sheriff.  The 
defendant  pleaded  that  he  took  the  property  by  virtue  of  a  writ 
of  replevin,  setting  up  the  short  statute  of  limitations.  The  court; 
by  Nelson,  Ch.  J.,  held  that  the  statute  only  extended  to  acts  done 
virtute  officii;  that  if  the  sheriff  was  a  trespasser  the  act  must  be 
deemed  done  colore  officii,  and  that  the  statute  was  therefore  n 
bar.  Seely  v.  Birdsall  (15  John.  267),  was  an  action  for  a  fals 
return,  which  was  held  to  be  local  because  it  was  an  act  done  vir- 
tute officii.  Spencer,  Ch.  J.,  said,  **the  true  distinction  was  be- 
tween an  act  done  colore  officii  and  virtute  officii.  In  the  former 
ease,  the  sheriff  is  not  protected  by  the  statute  when  the  act  is  of 
such  a  nature  that  his  office  gives  him  no  authority  to  do  the  act. 
But  when  doing  the  act  within  the  limits  of  his  authority,  he  exer- 
cises that  authority  improperly,  or  abuses  the  confidence  which 
the  law  reposes  in  him,  to  such  cases  the  statute  extends.' ' 

In  the  case  of  Commonwealth  v.  Kennard  (8  Pick.  133),  it  was 
held  that  the  owner  of  property  might  resist  the  officer  who 
should  attempt  to  seize  it  by  virtue  of  an  execution  against  an- 
other. Ch.  J.  Parker  said,  *  *  We  cannot  distinguish  between  an  offi- 
cer who  assumes  to  act  under  a  void  precept  and  a  stranger  who 
should  do  the  same  act  without  precept.  An  officer  without  pre- 
cept is  no  officer  in  the  particular  case  in  which  he  so  undertakes 
to  act."  So  in  Alcock  v.  Andrews  (2  Esp.  540),  which  was  an 
action  against  a  constable  for  an  assault  and  battery,  who  set  up 
the  six  months'  statute  of  limitations  under  the  statute  24  Greo. 
2,  ch.  44.  Lord  Kenyon  overruled  the  objection  upon  the  distinc-7 
tion  that  the  defendant  acted  colore  officii,  and  not  virtute  officii — ' 
"that  it  had  often  been  held  that  a  constable  acting  colore  officii 
was  not  protected  by  the  statute.  That  when  the  act  is  of  such  ah 
nature  that  the  office  gives  no  authority  to  do  the  act,  in  doing  it  ] 
he  is  not  to  be  considered  as  an  officer;  but  where  a  man  doing  an 
act  within  the  limits  of  his  official  authority,  exercises  that  author- 
ity improperly  or  abuses  the  discretion  placed  in   him,   to   such 

37  '' 


578  LIABILITY  OP  0PPICBB8. 

cases  the  statute  extends.     The  distinction  is  between  the  extent 
and  the  abuse  of  the  authority." 

Now  these  are  plain,  obvious  distinctions,  and  clearly  applicable 
to  this  case.  I  admit  that  they  have  not  in  all  cases  been  adhered 
to,  but  when  they  have  been  disregarded,  it  has  generally  been  foiy 
the  protection  of  public  officers,  and  not  for  the  purpose  of  extend;/ 
ing  their  own  liability  or  that  of  their  sureties.  In  two  or  three 
states,  sureties  have  indeed  been  held  liable  for  the  acts  of  their 
principals  done  colore  officii;  but  these  cases  cannot  be  supported 
upon  legal  principles. 

The  judgment  of  the  supreme  court  should  therefore  be  affirmed. 
RuGGLES,  J.,  and  Hublburt,  J.,  concurred. 

Judgment  reversed. 


C.    Liability  to  Government. 

THE  PEOPLE  V.  JOHR. 

Supreme  Court  of  Michigan.    AprU,  1871. 
22  Michigan,  461. 

Chbistiancy,  J.  This  was  an  action  of  debt  brought  in  the 
name  of  the  People  of  the  State  against  Johr  and  his  sureties  on  a 
bond  given  by  Johr  as  county  treasurer  of  St.  Clair  county,  to  the 
Auditor-General,  conditioned  as  provided  by  section  877,  Comp. 
L.,  substantially  for  accounting  for  and  paying  over  all  moneys 
said  treasurer  should  receive  for  sales  of  lands  for  taxes  at  the 
annual  tax  sales  in  said  county. 

The  declaration  alleges,  as  a  breach,  the  non-payment  of  seven 
thousand  four  hundred  ninety  and  88-100  dollars,  by  said  Johr 
received  as  such  treasurer,  for  the  sale  of  lands  for  taxes  at  the 
annual  tax  sales  in  said  county  for  the  year  1866. 

It  was  admitted  on  the  trial,  by  stipulation,  that  on  the  2nd 
November,  1866,  said  Johr,  as  treasurer  of  said  county,  had  in  his 
possession  seven  thousand  four  hundred  and  99-100  dollars  which 
belonged  to  and  was  the  property  of,  the  plaintiffs,  and  received 
by  him  in  the  manner  and  for  the  purposes  set 'forth  in  the  declara- 
tion, and  that  no  part  of  the  same  had  been  paid  to  the  State 
Treasurer. 


THE  PEOPLE  V.  JOHR.  579 

The  bond  appears  to  have  been  approved  by  one  Circuit  Court 
Commissioner  of  said  county,  and  this  approval  only  was  alleged 
in  the  declaration.  But  there  was  no  approval  by  the  Prosecuting 
Attorney,  or  the  other  Circuit  Court  Commissioner  shown,  nor  was 
there  any  express  approval  by  the  Auditor  General  upon  the 
bond;  but  as  produced  on  the  trial  it  contained  the  following  in- 
dorsement : 

"Official  bond  H.  Johr,  Treasurer  of  St.  Clair  county,  to  the 
Auditor  General,  1865  and  1866,  $20,000,  recorded  and  filed  May 
30th,  1865.  S.  D.  Bingham,  Deputy  Auditor  General."  This 
bond,  when  offered  in  evidence,  was  first  admitted,  stibject  to  objec- 
tion, and  the  stipulation  above  referred  to  having  been  read,  the 
plaintiffs  rested.  After  an  offer  by  the  defendant  to  prove  that 
Johr,  the  treasurer,  had  been  feloniously  robbed  of  the  money  in 
question,  had  been  overruled,  the  court,  recurring  to  the  bond 
which  had  been  admitted  subject  to  objection,  excluded  and  with- 
drew it  from  the  consideration  of  the  jury,  on  the  ground  that  it 
w^as  not  executed  and  approved  according  to  the  statute,  and  that 
this  action,  therefore,  could  not  be  maintained.  This  presents  the 
main  question  in  the  case ;  but  before  considering  this  we  will  first 
dispose  of  some  preliminary  questions  raised  by  the  defendants  in 
error. 

It  is  objected  that  there  was  no  evidence  that  the  bond  had  ever 
been  delivered  to,  or  filed  with  the  Auditor  General,  and  that  the 
indorsement  on  the  bond  of  its  filing  and  recording  in  the  Audi- 
tor General's  office,  signed  by  S.  D.  Bingham,  Deputy  Auditor 
General,  is  no  evidence  that  it  was  part  of  the  records  of  the  Audi- 
tor General's  office. 

As  to  the  delivery  of  the  bond  to  the  Auditor  General  and  his 
approval  and  acceptance  of  it,  it  is  proper  to  notice  that  by  the 
next  section  of  the  statute  (Comp.  L.,  Sec.  878),  the  county  treas- 
urer was  not  to  be  allowed  to  sell  lands  for  taxes  without  first  giv- 
ing the  bond  provided  for  by  the  preceding  section,  and  upon  fail- 
ure to  give  it  the  Auditor  General  was  to  employ  some  other  per- 
son to  make  the  sale,  and  the  county  treasurer  having,  after  the 
giving  of  this  bond,  actually  sold  the  land  and  received  the  money, 
the  inference  must  be  very  strong  that  he  was  allowed  to  do  so 
on  the  faith  of  this  bond,  and  that  the  same  must  therefore  have 
been  delivered  to,  accepted  and  approved  by  the  Auditor  General. 
See  Bank  v.  Dandridge,  12  Wheat.,  81.  But  whether  it  was  com- 
petent, under  such  circumstances,  for  the  defendants  to  deny  the 
delivery  when  produced  by  the  attorney  for  the  People,  we  need 


580  LIABILITY  OP  OFFICERS. 

not  decide.  There  was  no  affidavit  oi  the  defendants  below,  or 
any  of  them,  filed  under  the  79th  Rule  of  the  Circuit  Court,  deny- 
ing the  execution  of  the  bond,  and  we  think  under  this  rule  the 
delivery  constitutes  a  part  of  the  execution,  that  the  execution  in- 
cludes delivery,  by  which  alone  the  instrument,  though  signed, 
can  become  effectual.  Under  the  rule,  therefore,  the  delivery  was 
admitted. 

As  to  the  indorsement  of  S.  D.  Bingham,  Deputy  Auditor  Gen 
eral,  he  being  a  State  officer,  known  to  the  law,  we  are  bound  to 
take  judicial  notice  that  he  was  such  officer,  and  the  indorsement 
or  certificate  by  him  has  the  same  force  and  validity  as  if  signed 
by  the  Auditor  General  himself.  This  also  shows  an  approval  and 
acceptance  by  the  Auditor  General. 

There  was  therefore  no  legal  objection  to  the  introduction  of 
the  bond,  unless  it  was  properly  excluded  on  the  ground,  that  the 
sureties  not  being  approved  by  the  Prosecuting  Attorney  and  the 
other  Circuit  Court  Commissioner  for  the  county,  as  required  by 
section  877,  the  bond  could  not  be  sued  upon  as  a  statute  bond,  and, 
as  claimed  by  the  defendant  in  error,  that  a  suit  could  only  be 
maintained  upon  it  as  a  common  law  bond,  in  which  case,  as  it  is 
insisted,  the  suit  must  be  brought  in  the  name  of  the  obligee,  the 
Auditor  General,  and  not  in  that  of  the  People,  as  might  be  done 
if  the  bond  had  been  approved  as  required  by  the  statute. 

It  may  be  admitted,  for  the  purposes  of  this  case,  that  unless,  as 
between  the  People  and  the  defendants,  this  can  be  treated  as  a 
statute  bond,  the  action  should  have  been  brought  in  the  name  of  \ 
the  obligee.  Such  seems  to  be  the  general  current  of  authority, —  ' 
a  doctrine,  however,  which  when  applied  to  cases  where  the  bond 
is  valid,  and  was  evidently  intended  by  the  parties  for  the  same 
purpose  as  that  required  by  the  statute,  savors  more  of  technicality 
than  of  justice  or  common  sense. 

It  is  doubtless  true  that   without   the   approval   of   the   Prose- ^ 
cuting  Attorney  and  the  other  Circuit  Court  Commissioner,  thej 
Auditor  General  might  have  refused  the  bond,  and  declined  to  alV 
low  the  county  treasurer  to  make  the  tax  sales,  and  it  may  be  ad-\ 
mitted  that,  as  between  the  Auditor  General  and  the  people,  it  was  \ 
his  duty  to  have  done  so,  and  to  have  appointed  another  person  ' 
to  make  the  sales.     But  the  precise  question  here  is,  whether  the  \ 
county  treasurer,  who,  on  the  faith  of  this  bond,  was  allowed  to  ^. 
make  the  sale  and  receive  the  money,  or  his  sureties,  can  now  be  \ 
heard  to  make  the  objection,  that  the  bond  executed  by  them  and 
received  and  accepted  by  the  Auditor  General,  as  and  for  the  bond 


THE  PEOPLE  V.  JOHR.  581 

required  by  the  statute,  and  on  the  faith  of  which  he  has  allowed 
the  treasurer  to  sell  the  lands  and  receive  the  money,  was  not  ap- 
proved by  all  the  officers  whose  approval  it  was  the  duty  of  the 
treasurer  to  have  obtained.  For  whose  benefit  and  for  what  pur- 
pose did  the  statute  require  the  approval  by  the  officers  mentioned  ? 
Certainly  not  for  the  benefit  or  protection  of  the  county  treasurer 
or  his  sureties,  but  solely  for  the  security  and  protection  of  the 
public,  that  the  state  might  not  be  in  danger  of  losing  the  public 
funds  by  insufficient  sureties.  And  after  the  county  treasurer 
and  his  sureties  have  had  all  the  benefits  they  could  possibly  have 
enjoyed  had  the  approval  been  obtained,  it  is  not  for  his  sureties 
even,  (much  less  for  him),  to  object  that  the  state  or  its  officers 
should  have  exercised  more  caution  in  ascertaining  their  sufficiency 
as  sureties ;  for  this,  upon  final  analysis,  is  the  whole  force  of  the 
objection, — ^the  bond  itself,  in  all  its  provisions,  being  in  strict 
compliance  with  the  statute. 

Such  we  think  must  be  the  result  both  upon  logical  and  legal 
principles.  It  is  so  well  settled,  as  long  ago  to  have  become  a 
maxim  of  law,  that  any  one  may  waive  the  benefit  of  a  provision 
of  a  law,  or  a  contract  introduced  for  his  own  benefit. 

And  though,  as  between  the  People  of  the  state  and  the  Auditor 
General,  the  latter  may  have  had  no  right  to  waive  the  required 
approval  of  the  sureties  in  this  case,  yet  when  the  People  in  their 
corporate  capacity  sue  upon  the  bond,  under  the  circumstances  of 
this  case,  there  is  no  principle  of  justice  or  common  sense,  and  we 
are  aware  of  no  principle  of  law  which  prohibits  them,  so  far  as 
the  defendants  are  concerned,  from  waiving  the  approval,  or 
which  can  give  the  defendants  the  right  to  insist  upon  it  for  the 
purpose  of  defeating  their  liability. 

We  have  seen  but  one  case  which  clearly  conflicts  with  the  rea- 
soning we  have  adopted — Crawford  v.  Meredith  et  at.,  6  Geo.  552, 
— a  case  which,  so  far  as  we  can  judge  from  the  report,  does  not 
seem  to  have  been  very  carefully  considered. 

We  think,  therefore,  the  bond  in  this  case,  as  between  the  Peo- 
ple and  the  defendants,  is  to  be  treated  in  all  respects  as  a  statute 
bond,  and  that  the  Circuit  Court  erred  in  excluding  it  from  the 
jury. 

The  judgment  must  be  reversed,  with  costs,  and  a  new  trial 
awarded. 

The  other  Justices  concurred. 

See  Speed  v.  Detroit,  97  Mich.  198,  supra,  holding  that  mandamus  will 
issue  to  force  the  approval  of  an  oflBcial  bond. 


582  LIABILITY  OP  OPFICEBS. 


STEPHENS  V.  CRAWFORD,  GOVERNOR,  USE  OP  WARD. 

Supreme  Court  of  Georgia.    November,  1846. 
1  Georgia  Reports  574. 

By  the  Court — Nisbet,  Judge. 

This  is  an  action  on  a  sheriff's  bond,  to  charge  the  sureties  for 
a  default  of  their  principal,  and  the  first  question  made  is,  whether 
the  admissions  of  the  principal  can  be  given  in  evidence  to  charge 
them? 

We  think  they  are  prima  facie  evidence  of  their  liability,  and 
cast  the  onus  upon  them. 

This  court  has  determined  that  a  decree  against  a  guardian  upon 
a  bill  suggesting  a  devastavit  to  which  they  were  not  parties,  is 
no  more  than  prima  facie  evidence  against  the  sureties — they  can 
inquire  into  the  grounds  of  the  decree  ah  origine.  With  stronger 
reason  the  admission  of  a  principle  is  only  prima  facie  evidence. 
The  surety  may  show  in  rebuttal,  that  the  admission  was  made  by 
the  sheriff  by  mistake — or  collusion  with  third  persons  for  the  pur- 
pose of  charging  them — or  any  other  fact  which  demonstrates  that 
the  money  received  by  him  was  not  guarantied  to  be  paid  over  by 
them.    Any  other  rule  would  be  unjust  to  them. 

It  is,  however,  reasonable  and  according  to  the  settled  practice 
of  the  courts,  that  his  admission  should  go  against  them  as  prima 
facie  proof  of  liability.  They  would  be  conclusive  upon  himself,  if 
bona  fide  made,  and  will  bind  the  sureties,  because  they  are  his 
privies  in  law.  It  is  not  to  be  presumed  that  one  will  charge  him- 
self falsely — the  legal  presumption  is  that  they  are  true  until  the 
contrary  appears.  With  these  qualifications^  we  think  the  testi- 
mony was  properly  admitted.  2  Baily,  380,  381;  5  Binney,  184; 
1  Starkie,  189,  223,  243;  3  McCord,  412. 

We  have  now  arrived  at  the  point  where,  as  we  suppose,  all  the 
other  assignments  of  error  may  be  summarily  comprehended  in 
two  positions,  taken  in  the  argument  by  the  counsel  for  the  plain- 
tiff in  error.    These  positions  are : 

1st.  That  the  bond  upon  which  the  plaintiff's  action  is  founded,  \ 
to-wit,  the  second  bond  given  by  Stephens,  the  sheriff,  and  dated 
on  the  3d  of  March,  is  not  valid  as  a  statutory  bond;  and  there- 
fore the  plaintiff  is  not  entitled  to  recover. 


STEPHENS  V.  CRAWFORD.  583 

2d.  It  is  not  valid  as  a  voluntary    or    common-law    bond,  and  / 
therefore  the  plaintiff  cannot  recover. 

We  hold  that  the  remaining  points,  no  matter  how  originating 
or  how  stated,  must  necessarily  be  considered  and  adjudicated,  in 
our  discussion  of,  and  opinion  upon,  these  propositions. 

Both  of  these  positions  were  determined  against  the  plaintiff 
in  error  in  the  court  below. 

1st.  Is  this  a  valid  bond,  under  the  statutes  of  Georgia? 

By  the  act  of  1809,  (Prince,  177,)  it  is  made  the  duty  of  the 
sheriff  elect  to  apply  for  his  commission  within  twenty  days  from 
his  election;  and  to  take  the  oath  of  office  and  give  bond  within 
ten  days  after  being  notified  of  the  arrival  of  his  commission,  by 
the  act  of  1811,  (Prince,  178).  By  the  act  of  1823,  (Prince,  183), 
if  he  does  not  qualify  and  give  bond  within  the  time  prescribed  by 
the  two  before-recited  acts,  that  is,  within  thirty  days,  his  office  is 
declared  vacant  and  ineligible. 

In  view  of  these  statutes  it  is  argued,  that  this  is  not  a  valid 
bond,  because  iirst,  not  being  given  within  thirty  days,  the  office 
was  vacant,  and  the  sheriff  could  not  therefore  have  given  it  under 
the  statute. 

Now,  it  is  true  that  unless  the  Legislature  has  declared  that  un- 
less bond  is  given  within  thirty  days,  the  office  shall  be  considered 
as  vacant. 

The  object  of  this  requirement  is  to  secure  the  early  services  of 
an  officer  under  bond,  and  the  execution  of  the  bond  is  a  condition 
precedent  to  the  enjoyment  of  the  office;  it  perfects,  so  to  speak, 
the  sheriff's  title  to  it.  A  default  here  works  a  forfeiture,  against 
which  the  Inferior  Court  cannot  afterwards  relieve. 

If  there  was  no  bond  executed  in  this  case,  then  was  the  office 
forfeited,  and  once  a  forfeiture  always  a  forfeiture.  The  Inferior 
Court,  in  that  event,  could  not  have  regarded  him  as  a  sheriff;  he 
could  not  have  tendered  and  they  could  not  have  received  a  bond, 
colore  officii.    But  was  there  no  bond  given  within  time? 

The  record  discloses  that  there  was  a  bond  executed  by  the  sher-  I 
iff  Stephens,  to  the  governor  of  the  State,  on  the  11th  January,  / 
1840;   and  therefore  within  time.    Whether  that  bond  be  valid  or' 
not,  does  not  devolve  upon  us  to  determine.    It  has  not  so  far  as 
appears  to  us  judicially,  been  declared  invalid  by  any  court  hav- 
ing jurisdiction  over  it.     The  Inferior  Court  has  not  declared  it 
void  by  declaring  the  office  vacant,  and  ordering  a  new  election.  . 
We  only  know  the  fact  that  a  bond  was  executed  within  time,  and/ 
from  aught  that  appears,  that  it  is  a  good  bond,  and  that  the  sheriff' 


584  LIABILITY  OF  OFFICERS. 

is  properly  in  ofSce,  "We  cannot  therefore  say  that  the  bond  sued 
on  is  not  a  valid  statutory  bond,  for  the  reason  that  the  office  was 
vacated. 

2d.  It  is  argued  that  it  is  not  a  good  statutory  bond  because 
not  having  been  taken  within  time,  it  is  not  taken  according  to  the 
requirements  of  the  statute. 

It  is  insisted,  that  after  the  expiration  of  the  time,  it  is  not 
competent  for  the  Inferior  Court  to  demand  a  bond  of  the  sheriff; 
that  their  power  to  take  it  is  limited,  as  to  time,  by  the  statute; 
and  that  this  bond,  bearing  date  after  the  expiration  of  the  pre- 
scribed time,  cannot,  in  any  sense,  be  considered  as  taken  in  con- 
formity with  the  law.  We  consider  this  position  impregnable.  It 
is  true,  as  claimed  by  learned  counsel  for  the  defendant  in  error, 
that  if  a  bond,  required  by  statute,  departs  from  its  strict  provi- 
sions, as  where  the  penalty  is  larger  than  that  named  in  the  act, 
it  is  notwithstanding  good,  so  far  as  it  is  in  conformity  with  it; 
unless  the  statute  expressly  declares  that  all  bonds,  not  taken  in 
conformity  with  its  provisions,  shall  be  void. 

This  proposition,  as  a  rule  of  law,  has  an  exception  in  the  case 
of  a  bond  intended  to  operate  as  a  fraud  upon  the  obligors,  by  color 
of  the  law,  or  as  an  evasion  of  the  statute.  2  BaUy,  376;  2  N.  & 
McCord,  425;  2  McCord,  107;  6  Binney,  298.  But  this  case  does 
not  fall  within  the  doctrine  last  stated.  This  is  not  the  case  of  a 
bond  in  part  conformed  to  a  statute,  and  valid,  as  to  that  part,  and 
void  as  to  the  remainder  of  its  obligations.  It  is  a  bond  required 
by  the  Legislature  to  be  taken  within  a  time  limited,  and  not  taken 
beyond  that  time. 

The  act  requiring  it  to  be  taken  within  thirty  days  restricts  the 
agent,  viz.,  the  Inferior  Court,  to  that  time;  they  cannot  enlarge 
their  powers.  If  they  can  defer  a  demand  for  the  bond  until  one 
day  after  the  time,  they  may  a  hundred,  and  thus  defeat  the  in- 
tent of  the  Legislature  altogether. 

If  the  court  has  the  power  to  demand  a  bond  in  this  case,  I  see 
no  reason  why  the  right  should  not  equally  exist,  in  a  case  where 
there  was  confessedly  a  forfeiture  of  his  office.  But  could  they 
by  asking,  and  the  sheriff  by  giving  a  bond,  where  none  had  been 
given  in  time,  revoke  the  forfeiture  of  his  office  ?  Clearly  not.  Be- 
sides, if  they  in  such  a  case  may  be  considered  as,  under  the  law, 
entitled  to  call  upon  him  for  a  bond,  he  must  have  the  reciprocal 
right  to  give  one,  and  thereby  retain  an  office  which  his  previous 
default  has  vacated.  Besides,  having  given  one  bond,  the  sheriff 
has  complied  with  the  condition  upon  which  he  is  to  hold  office, 


STEPHENS  V.  CRAWFORD.  585 

and  tlie  court  has  no  right  to  east  burdens  upon  him  which  the 
law  does  not  impose. 

These  views  are  intended  to  illustrate  the  position  that  this 
cannot  be  regarded  as  a  statutory  bond.  We  do  not  find  that  this 
conclusion  is  much  strengthened  by  the  fact  which  counsel  for  the 
plaintiff  in  error  seemed  to  regard  as  of  some  importance,  that 
there  was  no  dedimus  potestatem,  to  the  Inferior  Court  to  take  this 
bond. 

If  the  law  does  not  confer  the  power,  the  executive  dedimus 
cannot  give  it,  and  if  it  does,  then  the  dedimus  is  but  a  wasteful 
surplusage.  We  have  seen  that  the  Legislature  has  conferred  it, 
but,  as  we  have  attempted  to  show,  to  be  exercised  within  a  limited 
time. 

What  further  remains  is  to  inquire  whether  this  be  a  valid 
bond  at  common  law?  We  think  it  is.  We  recognize  the  position 
occupied  by  the  counsel,  that  to  be  good  as  a  voluntary  bond,  it 
must  have  all  the  incidents  of  a  deed;  it  must  be  signed,  sealed, 
attested  and  delivered.  One  of  these  incidents,  to-wit,  delivery,  it 
is  said,  is  wanting.  The  bond  is  made  payable  to  Charles  J.  Mc- 
Donald, Governor  of  the  State  of  Georgia,  and  his  successors  in 
office,  and  the  argument  is,  that  it  was  not  delivered  to  Charles  J. 
McDonald.    We  cannot  see  that  it  was  necessary. 

In  considering  the  question,  whether  it  be,  or  not,  a  good  vol- 
untary bond,  we  must  look  to  the  circumstances  under  which,  and 
the  character  in  which,  it  was  given.  A  bond  made  to  A  and  de- 
livered to  B  is  void  for  want  of  delivery.  That  is,  however,  not 
this  case.  The  obligor,  Stephens,  is  the  sheriff  of  Baldwin  county, 
as  sheriff  he  goes  to  the  Inferior  Court,  and  suggesting  that  his 
previously  executed  bond  was  considered  void  by  some,  of  his  own 
mere  notion  tenders  to  them  an  additional  bond,  which  they  ac- 
cept. The  act  was  voluntary.  It  does  not  appear  that  the  court, 
virtute  officii,  as  agents  of  the  State,  considered  the  previous  bond 
void,  and  asked  a  new  one,  or  used  any  means,  by  suggestion, 
threats,  or  otherwise,  to  get  it.  The  evidence  is  that  he  of  his  own 
accord  tendered  it. 

Now  it  does  seem  to  me  that  it  does 'not  lie  in  the  mouth  of  this 
obligor  to  object  to  the  validity  of  this  bond.  He  is  estopped,  and 
so  are  his  securities;  for  their  assumption  of  the  obligations  of  the 
bond  was  also  voluntary,  and  they  are  his  privies  in  law.  What 
can  they  say  against  the  breach  of  a  contract  thus  intelligently, 
willingly  and  honestly  made  ?  Nothing.  They  must  lie  doAvn  un- 
der the  burdens  they  have  assumed. 


V 


686  LIABILITY  OF  OFFICERS. 

We  have  said  that  after  the  expiration  of  thirty  days,  the  In-l 
ferior  Court  has  no  right  or  power  to  demand  an  additional  bond] 
from  the  sheriff.  Whilst  this  is  true,  we  yet  hold  it  was  competent  ^ 
for  them,  in  their  official  character,  and  with  a  view  to  secure  the 
faithful  execution  of  the  duties  of  the  sheriff  to  receive  an  addi- 
tional bond  from  him,  when  voluntarily  tendered;  and,  when  so 
received,  the  rights  under  it  inure  to  the  parties  interested,  as  in 
case  of  the  first  bond.  The  security  is  cumulative.  Their  original 
power  to  receive  a  bond  is  continued,  in  cases  where  the  law  being 
complied  with  and  the  sheriff  in  office  he  in  that  character  tenders 
other  securities. 

In  this  view  of  it  the  bond  would  seem  to  be  statutory.    As  to 
the  obligors,  it  is  unquestionably  voluntary. 

Taking  into  view  the  circumstances  under  which  it  was  made! 
the  character  of  the  obligor,  and  also  of  those  to  whom  it  was  de-\ 
livered;  we  can  give  it  no  other  designation  than  this,  to-wit,  a' 
common-law  bond.  And  being  delivered  to  the  Inferior  Court  and 
attested  by  them,  and  found  where  the  law  directs  it  to  be  placed — 
in  the  custody  of  the  clerk  of  the  Superior  Court — we  are  of  the 
opinion  that  the  presiding  judge  committed  no  error  in  admit- 
ting a  certified  copy  of  it  to  go  in  evidence. 

Let,  therefore,  the  judgment  of  the  court  below  be  affirmed. 


CITY  OF  CHICAGO  V.  GAGE. 

Supreme  Court  of  Illinois.    May,  1880, 
95  Illinois  Reports  593. 

An  action  of  debt  was  brought  in  the  circuit  court  of  Cook 
county  by  the  city  of  Chicago  against  David  A.  Gage,  late  treas- 
urer of  the  city  of  Chicago,  and  John  B.  Sherman  and  others  as 
sureties  upon  what  was  alleged  to  be  the  official  bond  of  said  Gage, 
to  recover  a  sum  of  money  which  it  was  alleged  he  had  refused  to 
pay  over  to  his  successor  in  office.  Pleas  of  non  est  factum  were 
filed  by  all  of  the  defendants  and  verified  by  a  part  of  the  sure- 
ties. Issues  were  formed  thereon,  and  upon  the  breaches  assigned, 
by  proper  pleas,  and  upon  the  issues  thus  formed  a  trial  was  had 
in  the  circuit  court  resulting  in  a  verdict  against  the  dofendanta 
for  $1,000,000  debt,  the  penalty  of  the  bond,  and  $507,703.58  dam- 


CITY  OP  CHICAGO  V.  GAGE.  587 

ages,  upon  which  judgment  was  rendered.  The  defendants  took 
the  case  to  the  Appellate  Court  for  the  First  District,  where  the 
judgment  was  reversed,  and  the  city  appealed  from  the  judgment 
of  the  Appellate  Court  to  this  court. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  Court: 
It  is  insisted  by  appellants  that  the  instrument  in  question  is  a  a 
nuUity  as  to  the  sureties,  they  having  signed  it  with  the  blanks  in 
it  which  it  had,  and  those  blanks  being  subsequently  filled  without 
their  consent  or  knowledge,  and  the  case  of  The  People  v.  Organ, 
27  111.  29,  is  referred  to  in  support  of  the  position.    That  case  does 
decide,  that  the  filling  the  blank  in  a  bond  with  the  amount  of  the  ) 
penalty,  after  the  sureties  had  executed  it,  without  their  knowledge/ 
or  consent,  rendered  it  void,  as  to  them.     But  that  decision  was 
made  under,  and  in  conformity  to,  the  ancient  doctrine  of  the 
common  law  that  an  authority  to  execute  a  sealed  instrument  for 
another  must  be  of  as  high  a  character  as  the  instrument,  and 
therefore  that  a  parol  authority  was  not  adequate  to  authorize  an 
alteration  or  addition  to  a  sealed  instrument;  the  decision  recog- 
nizing as  the  rule  that  a  paper  signed  and  sealed  in  blank,  even 
with  verbal  authority  to  fill  the  blank,  which  is  afterwards  done, 
is  void  as  to  the  parties  so  signing  and  sealing,  unless  they  after- 
wards deliver,  or  acknowledge,  or  adopt  it. 

These  authorities  declare  the  now  prevailing  rule  upon  this  sub' 
ject,  and  the  reasons  of  the  rule.  They  sufficiently  show  that  the 
courts  have  entirely  drifted  away  from  the  decision  in  the  case 
of  The  People  v.  Organ.  Or  rather,  perhaps,  it  may  more  prop- 
erly be  said,  that  the  old  technical  rule  of  the  common  law  upon 
which  that  decision  was  based  has  become  overborne  in  operation, 
in  this  respect  at  least,  of  filling  blanks  in  official  bonds,  by  the  ap- 
plication of  the  doctrine  of  estoppel  m  pais,  a  principle,  at  least  in 
its  present  broadness  of  scope,  of  modern  growth.  The  first  dis- 
tinctive enunciation  in  England  of  the  branch  of  estoppel,  known 
as  estopped  by  conduct,  is  said  to  have  been  in  Pickard  v.  Sears,  6 
Ad.  &  E.  469,  and  in  this  country  in  Welland  Canal  Co.  v.  HathOf 
way,  8  Wend.  480.    See  Bigelow  on  Estoppel,  473,  476. 

This  court  has  since  departed  from  that  case  of  The  People  v. 
Organ,  and  placed  itself  in  harmony  with  the  class  of  authorities 
which  have  been  cited. 

Appellees  claim  that  there  was  notice  here  on  the  part  of  the 


588  LIABDJTY  OP  OFFICERS. 

city  of  the  secret  understanding  of  the  sureties,  or  one  of  them,  \ 
that  the  penalty  of  the  bond  was  not  to  be  more  than  $250,000,  ) 
If  such  were  the  facts  we  would  agree  with  them  as  to  the  fatal  ,' 
effect..  The  disagreement  is  in  regard  to  what  facts  will  constitute  i 
such  notice.  J 

It  is  in  reality  a  question  of  good  faith, — whether  these  blanks^ 
in  the  bond  indicated  the  existence  of  the  secret  understanding  as  ( 
to  the  amount  of  the  penalty,  and  should  have  put  the  obligee  / 
upon  inquiry  whether  the  sureties  consented  to  the  delivery  of  a 
bond  with  a  larger  penalty  than  $250,000.    We  do  not  think  such 
a  circumstance  as  the  blanks  in  the  bond  was  in  any  way  indicative 
of  such  a  secret  understanding,  or  excited  any  suspicion  of  its  ex-  j 
istence,  or  put  the  obligee  upon  any  inquiry  as  to  such  an  under- 
standing and  we  must  believe  the  oblipee  acted  in  entire  good  faith  \ 
in  taking  the  bond.  -^ 

Another  point  which  is  made  against  the  validity  of  the  bond  is,  A 
that  failure  to  file  a  bond  within  fifteen  days  after  the  canvass  \ 
vacated  the  office  therein  described,  and  thereupon  all  liability  un-  / 
der  the  bond  terminated. 

The  position  is,  that  the  provision  requiring  a  bond  to  be  filed 
by  the  treasurer  elect  within  fifteen  days  after  the  official  canvass 
has  been  declared  is  mandatory,  and  that  a  failure  to  file  the  bond 
within  that  time  co  instanti,  upon  the  termination  of  the  time,  ab- 
solutely vacates  the  office. 

It  is  insisted  on  the  contrary,  that  the  sections  of  the  charter  on 
this  subject  taken  together  were  intended  merely  to  empower  the 
mayor  and  council,  in  their  discretion,  to  declare  a  vacancy  and 
appoint  a  successor,  or  to  waive  the  default  as  to  the  mere  time  of 
filing  bond,  and  to  accept  and  approve  it  when  afterwards  filed; 
therefore,  a  failure  to  file  in  time  does  not,  of  itself,  annul  or  avoid 
the  right  or  title  to  the  office,  but  merely  renders  it  voidable  or  de^ 
feasible.  That  if  the  officer  files  his  bond  strictly  in  time,  his  right 
and  title  to  the  office  are  indefeasible.  If  he  files  it  afterwardsi 
and  it  be  accepted  and  approved,  his  right  and  title  become  there^ 
upon  equally  indefeasible. 

This  latter  seems  a  reasonable  construction,  and  is  one  which  we 
are  disposed  to  adopt.  Gage  derived  his  title  to  the  office  from  the 
election.  The  law  does  not  favor  forfeitures  and  "in  enforcing 
forfeitures  courts  should  never  search  for  that  construction  of  lan- 
guage which  must  produce  a  forfeiture,  when  it  will  bear  another 


CITY  OP  CHICAGO  V.  GAGE.  589 

reasonable  construction."    Hartford  Ins.  Co.  v.  Walsh,  54  111.  168. 

Suppose  the  filing  of  the  bond  within  the  fifteen  days  had  been 
prevented  by  some  inevitable  accident,  but  the  very  next  day  after 
the  officer  filed  his  bond,  which  was  accepted  and  approved — in  , 
reason,  why  should  not  that  suffice,  and  the  officer  have  right  to  the/ 
office  for  the  term  for  which  he  was  elected?  The  aim  of  the  stat- 
ute would  be  fulfilled.  The  object  of  the  statute  was  not  a  change 
of  person  to  hold  the  office,  but  to  secure  an  official  bond.  That 
having  been  given,  the  person  whom  the  people  had  elected  would 
seem  the  more  proper  person  to  have  the  office,  than  one  appointed 
by  the  mayor  and  council. 

It  is  conceded  that  after  the  expiration  of  the  fifteen  days  the 
mayor  and  council  would  have  been  fully  justified  in  refusing  to 
accept  and  approve  this  bond,  because  of  this  default;  and  in  ap- 
pointing Gage's  successor,  as  in  the  case  of  Boss  v.  The  People,  78 
111.  375.  Had  they  so  elected  Gage's  right  to  the  office  would  have 
been  forfeited,  and  a  person  appointed  would  give  a  bond.  But  \ 
(in  theory  at  least)  the  rights  and  interests  of  the  public  were 
made  equally  secure  by  electing  to  waive  the  right  of  forfeiture 
and  accepting  and  approving  the  bond  in  suit,  after  the  fifteen 
days. 

There  are  numerous  authorities  that  a  provision  of  law,  that  an 
officer  shall  give  bond  within  a  prescribed  time  after  his  election, 
is  directory  only.  The  People  v.  Holly,  12  "Wend.  480;  State  v. 
Churchill,  41  Mo.  41;  State  v.  Porter,  7  Ind.  204;  and  see  Kear- 
ney V.  Andrews,  2  Stock.  Ch.  70,  Speake  v.  United  States,  9  Cranch. 
28.  The  other  clauses  in  the  charter,  **he  shall  be  deemed  to  have 
refused  said  office  and  the  same  shall  be  filled  by  appointment," 
or,  (if  held  to  apply  here),  "the  office  shall  become  vacant,"  it 
may  be  held  do  not  change  the  rule,  as  the  following  authorities 
show,  in  the  case  of  words  even  more  explicit  than  these. 

In  State  v.  Toomer,  7.  Rich.  (Law),  216,  the  statute  required, 
the  master  in  chancery,  within  three  weeks  after  his  election,  to] 
tender  his  bond  for  approval,  and  upon  its  approval,  to  deposit  it ' 
with  the  treasurer  and  sue  out  his  commission,  and  that  "upon  his 
neglect  or  failure  to  do  so  within  the  said  time,  his  office  shall  be 
deemed  absolutely  vacant,  and  shall  be  filled  by  election  or  appoint- 
ment, as  heretofore  provided." 

But  the  court  held  that  the  failure  to  comply  with  this  require-  \ 
ment  was  only  cause  of  forfeiture,  but  not  a  forfeiture  ipso  facto.  1 
That  by  a  strict  compliance  with  the  terms  of  the  statute,  the  title 


590  LIABILITY  OF  OFFICaEBS. 

of  the  office  was  protected  against  forfeiture,  "and  that  if  the  State 
sees  proper  to  excuse  his  delinquency  by  granting  him  his  commis- 
sion, the  defects  of  his  title  are  cured,  and  it  is  converted  into  a 
title  de  jure,  having  relation  back  to  the  time  of  his  election." 

In  Sprowl  V.  Lawrence,  33  Ala.  674,  the  statute  required  the 
sheriff  to  file  his  official  bond  in  the  office  of  the  probate  judge, 
before  entering  upon  the  duties  of  his  office,  and  within  fifteen  days 
after  his  election.  The  statute  also  expressly  declared  that  if  he 
failed  to  file  his  bond  within  the  time  prescribed  by  law,  he 
vacated  his  office.  The  court  there  say:  "By  virtue  of  his  elec- 
tion, Duncan  was  sheriff,  so  far  as  his  mere  right  to  the  office  was 

concerned,  before  he  executed  his  bond The  election 

therefore  having  invested  him  with  his  title  to  the  office,  the  stat- 
ute requiring  him  to  file  his  bond  within  fifteen  days,  and  pro- 
viding that  on  his  failure  to  do  so  he  'vacates  his  office'  operates 
as  a  defeasance,  and  not  as  a  condition  precedent,"  and  concluding 
as  follows :  *  *  Our  conclusion  is,  that  the  failure  of  a  legally  elected 
sheriff  to  file  his  bond  within  the  time  prescribed,  does  not,  by  itsi 
unaided  force,  operate  his  instantaneous  removal  from  office;  and! 
that  a  bond  executed  by  him  more  than  fifteen  days  after  his  elec- 
tion, and  before  any  steps  or  proceeding  on  the  part  of  the  State 
to  effect  his  amotion,  must  be  considered  as  the  bond  of  an  'officer' 
within  the  meaning  of  section  132  of  the  code, ' '  that  is,  of  an  officer 
de  jure. 

It  is  suggested  by  appellee's  counsel  that  this  last  case  has  been 
overruled  by  that  of  State  ex  rel.  v.  Tucker,  54  Ala.  205.  But 
upon  examination  we  understand  this  to  be  so  only  in  part,  that  is, 
in  so  far  only  as  the  former  case  seemed  to  require  a  judicial  ascer- 
tainment of  the  vacancy  before  the  appointment  of  a  successor 
could  be  made. 

On  November  20,  1871,  the  canvass  of  the  votes  was  made  and 
the  common  council  declared  Gage  elected,  and  on  the  27th  of  the 
same  month  he  took  and  filed  his  oath  of  office.  Although  he  had 
taken  steps  towards  procuring  his  proposed  bond^  and  had  obtained 
the  names  of  those  who  were  willing  to  become  his  sureties,  he  failed 
to  perfect  it  and  to  file  it  with  the  city  clerk  within  the  fifteen  days, 
but  neither  the  mayor  nor  the  council  either  declared  the  office  va- 
cant, or  appointed  his  successor,  and  when  afterwards  he  did 
present  his  perfected  bond,  they  accepted  and  approved  it.  Upon 
the  faith  of  the  security  of  this  bond  he  held  and  enjoyed  the  office 
for  the  full  term  of  two  years,  and  was  intrusted  with  the  public 


CITY  OF  CHICAGO  V.  GAGE.  591 

moneys.  The  apparent  implied  authority  with  which  the  sureties 
had  clothed  Gage  to  make  use  of  and  deliver  this  bond  as  his  oflS- 
cial  bond,  by  signing  and  sealing  the  same  and  leaving  it  with  him, 
was  a  continuing  authority,  until  some  step  was  taken  by  the  sure- 
ties towards  its  revocation. 

Not  a  step  was  taken  in  that  direction. 

We  do  not  think  the  sureties  have  the  right  now  to  set  up  in  de-  1 
feat  of  the  bond  that  it  was  accepted  and  approved  and  filed  with  / 
the  city  clerk  within  the  fifteen  days  prescribed  in  the  charter. 

Another  question  arises  upon  the  ruling  of  the  Circuit  Court  in 
excluding  questions  put  to  Gage  when  on  the  stand  as  a  witness,  as 
to  whether  certain  balances  were  in  his  hands,  as  treasurer,  at 
specified  dates.  He  was  asked  whether  the  balance  of  $519,508.07, 
which  appeared  charged  against  the  city  treasurer  on  December 
4th,  1871,  the  day  of  the  commencement  of  his  second  term,  was  at 
that  time  actually  in  his  hands.  The  same  question  was  put  with 
reference  to  December  11,  1871,  and  January  11,  1872.  He  was 
also  asked  whether  the  balance  appearing  to  be  in  his  hands  De- 
cember 16,  1873,  of  $507,703.58,  was  at  that  time  actually  loaned 
out  for  the  benefit  of  the  city  of  Chicago.  The  questions  were  all 
excluded  and  exception  taken. 

Gage  was  his  own  successor  in  office.  It  was  his  duty  as  incom- 
ing treasurer  to  receive  the  treasury  balance  from  his  predecessor. 
If  he  entered  it  in  his  treasury  books  after  the  beginning  of  his 
second  term  as  having  actually  come  to  his  hands  from  his  prede- 
cessor, and  continued  afterward  from  time  to  time  to  return  and 
report  the  same  as  in  his  hands,  both  he  and  his  sureties,  we  think, 
should  now  be  concluded  from  denying  that  this  balance  did  actu- 
ally come  into  Gage's  hands  as  treasurer.  The  law  transferred 
any  balance  on  hand  to  his  second  term. 

As  respects  Gage  himself,  it  would  seem  to  be  quite  clear  that 
these  statements  of  his  of  the  treasury  balances  in  his  hands  should 
be  conclusive  upon  him. 

It  is  a  familiar  principle  that  a  public  officer  making  a  return 
of  his  doings  upon  a  writ  shall  not  be  allowed  to  gainsay  the  truth 
of  it.  Barrett  v.  Copeland,  18  Vt.  67 ;  Hoyne  v.  Small,  22  Me.  14 ; 
Sheldon  v.  Payne,  3  Seld.  453. 

The  principle  upon  this  subject  is  laid  down  in  Cave  v.  Mills, 
7  Hurls.  &  Norm.  913. 

And  we  are  of  opinion  that  the  sureties  should  be  equally  con- 
cluded here  with  Gage  himself. 


692  LIABILITY  OF  OFFICERS. 

Commissioners  v,  Mayrant,  2  Brevard  228,  was  a  suit  on  a  sher- 
iff's official  bond.  During  his  term  of  office  the  sheriff  wrongfully 
endorsed  a  levy  of  a  sum  of  money  upon  an  execution  in  his  hands 
and  returned  the  execution  with  the  levy  thereon,  and  failed  to 
pay  over  the  money.  The  sureties  on  the  bond  were  held  to  be  re-, 
sponsible  for  the  amount  returned  as  levied  by  the  sheriff,  although 
the  same  was  not  in  fact  levied.  It  was  said  the  sheriff's  return 
was  an  official  act  which  bound  him  officially  and  made  his  sureties 
liable. 

In  McCabe  v.  Baney,  32  Ind.  309,  a  suit  against  principal  and 
sureties,  joint  makers  of  a  promissory  note,  the  principal  having, 
by  his  statements  to  the  purchaser  of  the  note  that  there  was  no 
defence  to  it,  precluded  himself  from  setting  up  a  defence  to  the 
note,  his  sureties  were  held  also  precluded,  the  court  saying,  "Any 
act  of  the  principal  which  estops  him  from  setting  up  a  defence, 
personal  to  himself,  operates  equally  against  his  sureties." 

In  Baker  v.  Preston,  1  Gilmer  (Va.)  235,  an  action  upon  a  State 
treasurer's  official  bond,  it  was  decided  that  the  books  kept  by  the 
treasurer  were  conclusive  evidence  of  the  balance  actually  in  the 
treasury  at  any  given  time,  both  against  the  treasurer  and  his  sure- 
ties, without  being  pleaded  as  an  estoppel,  so  as  to  charge  them 
with  balances  carried  forward  from  year  to  year  as  if  those  bal- 
ances were  actually  on  hand. 

In  The  United  States  v.  Oirault  et  al.,  11  How.  27,  a  suit  on  the 
official  bond  of  a  receiver  of  public  moneys,  the  breach  assigned 
was,  that  on  the  2d  day  of  June,  1840,  Girault,  as  such  receiver, 
had  received  a  large  amount  of  public  money,  to- wit:  the  sum  of 
$8,952.37,  which  he  had  refused  to  pay  to  the  United  States. 

To  this  breach  the  sureties  pleaded:  That  on  the  2d  day  of 
June,  1840,  and  on  divers  days  before  that  day,  the  said  Girault 
gave  receipts  as  receiver  for  moneys  paid  on  the  entry  of  certain 
lands  therein  specified,  and  returned  the  same  to  the  treasury  de- 
partment to  the  amount  of  $10,000  and  of  which  the  amount  in  the 
declaration  mentioned  was  part  and  parcel.  And  that  neither  the 
$10,000,  nor  any  part  thereof,  was  paid  to  or  received  by  him,  the 
said  Girault. 

The  plea  was  held  bad  on  general  demurrer.  The  court  say: 
**The  condition  of  the  bond  is,  that  Girault  shall  faithfully  exe- 
cute and  discharge  the  duties  of  his  office  as  a  receiver  of  the  public 
moneys.  The  defendants  have  bound  themselves  for  the  fulfillment 
of  these  duties ;  and  are,  of  course,  responsible,  for  the  very  fraud 


UNITED  STATES  V.  THOMAS.  593 

committed  upon  the  government  by  that  officer,  which  is  sought 
to  be  set  up  here  in  bar  of  the  action  on  the  bond. 

As  Girault  would  not  be  allowed  to  set  up  his  own  fraud  for  the 
purpose  of  disproving  the  evidence  of  his  indebtedness,  we  do  not 
see  but  that,  upon  the  same  principle,  they  should  be  estopped 
from  setting  it  up  as  committed  by  one  for  whose  fidelity  they  have 
become  responsible."  And  see  Morley  v.  The  Toxvn  of  Metamora, 
78  111.  394;  Evans  v.  Keeland,  9  Ala.  42. 

The  question  as  to  the  balance  shown  by  the  record  in  Gage's 
hands  December  16,  1873,  being  loaned  out  for  the  benefit  of  the 
city,  is  liable  to  the  further  objection  that  its  tendency,  if  answered 
affirmatively,  would  be  to  prove  a  breach  of  the  bond  in  that  re- 
spect. Under  the  charter  the  treasurer  was  required  "to  keep 
safely  without  loaning  or  using"  the  city  money,  and  was  per- 
mitted to  deposit  it  at  interest  only  by  the  authority  of  the  com- 
mon council  manifested  by  ordinance  or  resolution,  and  in  the 
manner  prescribed  by  the  charter.  There  is  no  pretence  that  such 
authority  was  ever  given;  on  the  contrary,  there  is  evidence  tend- 
ing to  show  that  it  was  not  given. 

We  find  no  material  error  in  the  ruling  of  the  Circuit  Court  upon 
the  admission  or  exclusion  of  evidence. 

The  judgment  of  the  Appellate  Court  is  reversed  and  the  cause 

remanded,  with  directions  to  enter  a  judgment  of  affirmance  of  the 

judgment  of  the  Circuit  Court. 

Judgment  reversed. 

Dickey,  J.,  took  no  part  in  the  decision,  having  been  of  counsel 
in  the  case  in  the  Circuit  Court. 

See  also  Boone  Co.  v.  Jones,  54  Iowa  699,  supra,  holding  that  neither  an 
officer  nor  the  sureties  on  his  official  bond  may  be  heard  in  a  suit  on  his 
bond  to  impeach  his  title  to  office. 


UNITED  STATES  V.  THOMAS. 

Supreme  Court  of  the  United  States.    December,  1872. 
15  Wallace  337. 


Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

This  case  brings  up  squarely  the  question  whether  the  forcible 
seizure,  by  rebel  authorities,  of  public  moneys  in  the  hands  of  loyal 
government  agents,  against  their  will,  and  without  their  fault  or 

38 


594  LIABILITY  OP  OPPICEBS. 

negligence,  is,  or  is  not,  a  sufficient  discharge  from  the  obligations 
of  their  official  bonds.  This  precise  question  has  not  as  yet  been 
decided  by  this  court.  As  the  rebellion  has  been  held  to  have  been 
a  public  war,  the  question  may  be  stated  in  a  more  general  form,  as 
follows:  Is  the  act  of  a  public  enemy  in  forcibly  seizing  or  de-' 
stroying  property  of  the  government  in  the  hands  of  a  public  oflScer, 
against  his  will,  and  without  his  fault,  a  discharge  of  his  obligation 
to  keep  such  property  safely,  and  of  his  official  bond,  given  to  se- 
cure the  faithful  performance  of  that  duty,  and  to  have  the  prop- 
erty forthcoming  when  required? 

The  question  is  thus  stated  in  its  double  aspect,  namely:  first, 
in  regard  to  the  obligation  arising  from  official  duty ;  and,  secondly, 
in  regard  to  that  arising  from  the  bond,  because  the  condition  of 
the  latter  is  twofold, — that  the  principal  shall  faithfully  discharge 
his  official  duties,  and  that  he  shall  pay  the  moneys  of  the  gov- 
ernment that  may  come  into  his  hands  as  and  when  it  shall  be  de- 
manded of  him.  It  is  contended  that  the  latter  branch  of  the 
condition  has  a  more  stringent  effect  than  the  former,  and  creates 
an  obligation  to  pay,  at  all  events,  all  public  money  received. 

That  overruling  force  arising  from  inevitable  necessity,  or  the 
act  of  a  public  enemy,  is  a  sufficient  answer  for  the  loss  of  public 
property  when  the  question  is  considered  in  reference  to  an  officer's 
obligation  arising  merely  from  his  appointment,  and  aside  from 
such  bond  as  exists  in  this  case,  seems  almost  self-evident.  If  it  is 
not,  then  every  military  commander  who  ever  lost  a  battle,  or  was 
obliged  to  surrender  his  ship  or  fort,  or  other  public  property, 
added  a  civil  obligation  to  his  military  misfortune.  And  as  it  re- 
gards this  question,  it  is  difficult  to  perceive  any  distinction  be- 
tween the  loss  of  one  kind  of  property  and  another.  If  the  prop- 
erty belongs  to  the  government,  the  loss  falls  on  the  government; 
if  it  belongs  to  individuals,  it  falls  on  them. 

The  general  rule  of  official  obligation,  as  imposed  by  law,  is  that 
the  officer  shall  perform  the  duties  of  his  office  honestly,  faithfully, 
and  to  the  best  of  his  ability.    This  is  the  substance  of  all  official 


oaths.  In  ordinary  cases,  to  expect  more  than  this  would  deter  up-  * 
right  and  responsible  men  from  taking  office.  This  is  substantially 
the  rule  by  which  the  common  law  measures  the  responsibility  of 
those  whose  official  duties  require  them  to  have  the  custody  of  prop- 
erty, public  or  private.  If  in  any  case  a  more  stringent  obligation 
is  desirable,  it  must  be  prescribed  by  statute  or  exacted  by  express 
stipulation. 

The  ordinary  rule  will  be  found  illustrated  by  a  number  of  anal- 
ogous cases. 


UNITED  STATES  V.  THOMAS.  595 

It  is  laid  down  by  Justice  Story  that  officers  of  courts  having 
the  custody  of  property  of  suitors  are  bailees,  and  liable  only  for 
the  exercise  of  good  faith  and  reasonable  diligence,  and  not  re4 
sponsible  for  loss  occurring  without  their  fault  or  negligence.  *l 
Trustees  are  only  bound  to  exercise  the  same  care  and  solicitude 
with  regard  to  the  trust  property  which  they  would  exercise  with 
regard  to  their  own.  Equity  will  not  exact  more  of  them.f  They 
are  not  liable  for  a  loss  by  theft  without  their  fault.J  But  this 
exemption  ceases  when  they  mix  the  trust-money  with  their  own, 
whereby  it  loses  its  identity,  and  they  become  mere  debtors.  §  Re-, 
ceivers,  appointed  by  the  court,  though  held  to  a  stricter  accounta- 
bility than  trustees,  on  account  of  their  compensation,  are  never- 
theless not  liable  for  a  loss  without  their  fault;  and  they  are  en- 
titled to  manage  the  property  and  transact  the  business  in  their 
hands  in  the  usual  and  accustomed  way.|l  A  marshall  appointed 
by  a  court  of  admiralty  to  take  care  of  a  ship  and  cargo  is  respon- 
sible only  for  a  prudent  and  honest  execution  of  his  commission.!! 
"Every  man,"  says  Sir  Walter  Scott,  "who  undertakes  a  commis- 
sion incurs  all  the  responsibility  that  belongs  to  a  prudent  and 
honest  execution  of  that  commission.  Then  the  question  comes, 
What  is  a  prudent  and  honest  execution  of  that  commission  ?    The  \ 

fair  performance  of  the  duties  that  belong  to  it He 

must  provide  a  competent  number  of  persons  to  guard  the  prop- 
erty ;  having  so  done  he  has  discharged  his  responsibility,  unless 
he  can  be  affected  with  fraud,  or  negligence  amounting  in  legal 
understanding  to  fraud.**  A  postmaster  is  bound  to  exercise  n 
due  diligence,  and  nothing  more,  in  the  care  of  matter  depos- 
ited in  the  postoffice.  He  is  not  liable  for  a  loss  happening  with-  / 
out  his  fault  or  negligence.     Soon  after  +he  organization  of  the 


♦Story  on  Bailments,  §  620. 

tStory  on  Bailments,  §  620;   Lewin  on  Trusts,  332,  3d  ed. 

tib. 

§Ib.  and  2  Story's  Eq.  Juris.,  §  1270,  and  see  §§  1268,  1269;  also 
2  Spence's  EJq.  Juris.,  917,  921,  933,  937;  Wren  v.  Kirton,  11  Vesey,  381; 
Utica  Ins.  Co.  v.  Lynch,  11  Paige,  520. 

I  [Knight  V.  Lord  Plymouth,  3  Atkyns,  480;  Rowth  v.  Howell,  3  Vesey, 
566;  Lewin  on  Trusts,  332,  3d  ed.;  Edwards  on  Receivers,  573-599;  White 
V.  Baugh,  3  Clark  &  Finnelly,  44. 

HThe  Rendsberg,  6  Robinson,  142. 

**6  Robinson,  154;  see  also  Burke  v.  Trevitt,  1  Mason,  96,  100. 


596  LIABILITY  OP  OPPICEBS. 

government  post  it  was  attempted  to  charge  the  Postmaster-General 
to  the  same  extent  as  the  common  carriers  who  had  previously  car- 
ried the  mails;  and  the  question  was  elaborately  argued  in  the 
great  case  of  Lane  v.  Cotton  et  al.,  1  Lord  Raymond  646,  and  Lord 
Chief  Justice  Ilolt  strenuously  contended  for  that  view ;  but  it  was 
decided  that  the  postmaster  was  only  liable  for  his  own  negligence ; 
and  this  case  was  followed  by  Lord  Mansfield  and  the  whole  court, 
three-quarters  of  a  century  later,  in  the  case  of  Whitfield  v.  Le 
Despencer,  Cowper  754 ;  see  Story  on  Bailments,  §  463 ;  Dunlop  v. 
Munroe,  7  Cranch  242. 

In  certain  cases,  it  is  true,  a  more  stringent  accountability  is 
exacted;  as  in  the  case  of  a  sheriff,  in  reference  to  prisoners  held 
by  him  in  custody,  where  the  law  puts  the  whole  power  of  the 
county  at  his  disposal  and  makes  him  liable  for  an  escape  in  all 
cases,  except  where  it  is  caused  by  an  act  of  God  or  the  public 
enemy.  33  Hen.  IV,  p.  1;  Brooke's  Abridgment,  tit.  Dette,  22; 
Dalton's  Sheriff,  485;  Watson  on  Sheriffs,  140.  The  exception 
which  thus  qualifies  the  severest  exaction  of  official  responsibilitj' 
known  at  the  common  law  is  worthy  of  particular  notice.  The 
reason  for  applying  so  severe  a  rule  in  cases  of  escape  is  probably 
founded  in  motives  of  public  safety.  Chief  Justice  Gibson,  in 
Wheeler  v.  Eamhright,  9  Sergeant  &  Rawles  396,  says:  "The 
strictness  of  the  law  in  this  respect  arises  from  public  policy." 
Lord  Chief  Justice  Holt,  in  his  dissenting  opinion  in  Lane  v.  Cotton, 
also  held  that  the  sheriff  was  responsible  in  the  same  strict  manner 
for  goods  seized  in  execution;  but  he  cited  no  authority  for  the 
opinion,  and  the  general  rule  of  responsibility  is  certainly  much 
short  of  that. 

The  basis  of  the  common-law  rule  is  founded  on  the  doctrine  of 
bailment.  A  public  officer  having  property  in  his  custody  in  his 
official  capacity  is  a  bailee ;  and  the  rules  which  grow  out  of  that 
relation  are  held  to  govern  the  case.  But  the  legislature  can  un- 
doubtedly, at  its  pleasure,  change  the  common-law  rule  of  responsi- 
bility. And  with  regard  to  the  public  moneys,  as  they  often 
accumulate  in  large  sums  in  the  hands  of  collectors,  receivers,  and 
depositaries,  and  as  they  are  susceptible  of  being  embezzled  and 
privately  used  without  detection,  and  are  often  difficult  of  identi- 
fication, legislation  is  frequently  adopted  for  the  purpose  of  holding 
such  officers  to  a  very  strict  accountability.  And  in  some  cases  they 
are  spoken  of  as  though  they  were  absolute  debtors  for,  and  not 
simply  custodians  of,  the  money  in  their  hands.  In  Nev  York,  in 
the  case  of  Muzzy  v.  Shattuck,  1  Denio  233,  the  court,  after  a  care- 


UNITED  STATES  V.  THOMAS.  597* 

ful  examination  of  the  statutory  provisions  respecting  the  duties 
and  liabilities  of  a  town  collector,  came  to  the  conclusion  (contrary 
to  its  previous  decision  in  The  Supervisors  v.  Dorr,  25  Wend.  440), 
that  he  was  liable  as  a  debtor,  and  not  merely  as  a  bailee,  for  the 
moneys  collected  by  him,  and  consequently  that  he  could  not  excuse 
himself,  in  an  action  on  his  bond,  by  showing  that,  without  his 
fault,  the  money  had  been  stolen  from  his  office. 

Where,  however,  a  statute  merely  prescribes  the  duties  of  the 
officer,  as  that  he  shall  safely  keep  money  or  property  received  or 
collected,  and  shall  pay  it  over  when  called  upon  to  do  so  by  the 
proper  authority,  it  cannot,  without  more,  be  regarded  as  enlarging 
or  in  any  way  affecting  the  degree  of  his  responsibility.  The  mere 
prescription  of  duties  has  nothing  to  do  with  the  question  as  to 
what  shall  constitute  the  rule  of  responsibility  in  the  discharge  of 
those  duties,  or  a  legal  excuse  for  the  nonperformance  of  them,  or 
a  discharge  from  their  obligation.  The  common  law,  which  is 
common  reason,  prescribes  that;  and  statutes,  in  subordination  to 
their  terms,  are  to  be  construed  agreeably  to  the  rules  of  the  com- 
mon law. 

The  acts  of  Congress  with  respect  to  the  duties  of  collectors,  re- 
ceivers, and  depositaries  of  public  moneys,  it  must  be  conceded, 
manifest  great  anxiety  for  the  due  and  faithful  discharge  by  these 
officers  of  their  responsible  duties,  and  for  the  safety  and  payment 
of  the  moneys  which  may  come  to  .their  hands.  They  are  expressly 
required  to  keep  safely,  without  loaning,  using,  depositing  in  banks, 
or  exchanging  for  other  funds  than  as  specially  allowed  by  law, 
all  the  public  money  collected  by  them,  or  in  their  possession  or 
custody,  till  ordered  by  the  proper  department  or  officer  to  be 
transferred  or  paid  out;  and  where  such  orders  for  transfer  or 
payment  are  received  faithfully  and  promptly  to  make  the  same 
as  directed.  9  Stat,  at  Large,  61,  §  9.  To  obviate  all  excuse  for 
casual  losses,  it  is  provided  that  they  shall  be  allowed,  under  the 
direction  of  the  Secretary  of  the  Treasury,  all  necessary  additional 
expenses  for  clerks,  fire-proof  chests  or  vaults,  or  other  necessary 
expenses  of  safekeeping,  transferring,  and  disbursing  said  moneys. 
9  Stat,  at  Large,  62,  §  13.  And  it  is  expressly  made  embezzlement 
and  a  felony,  for  an  officer  charged  with  the  safekeeping,  transfer 
and  disbursement  of  the  public  moneys,  to  convert  them  to  his  own 
use,  or  to  use  them  in  any  way  whatever,  or  to  loan  them,  deposit 
them  in  bank,  or  to  exchange  them  for  other  funds  except  as  or- 
dered by  the  proper  department  or  officer.  9  Stat,  at  Large,  63,  § 
16.    Every  receiver  of  public  money  is  required  to  render  his  ac- 


598  LIABILITY  OP  OFFICEBS. 

counts  quarter-yearly  to  the  proper  accounting  officers  of  the  trea».| 
ury,  with  the  vouchers  necessary  to  the  prompt  settlement  thereof, 
within  three  months  after  the  expiration  of  each  quarter,  subject, 
however,  to  the  control  of  the  proper  department.  3  Stat,  at  Large, 
723,  §  2.  Besides  this,  all  such  officers  are  required  to  give  bonds 
with  sufficient  sureties  tor  the  due  discharge  of  all  these  duties. 
1  Stat,  at  Large,  705 ;  2  Id.  75 ;  9  Id.  60,  61,  &c.  And  upon  making 
default  and  being  sued,  prompt  judgment  is  directed  to  be  given,  and 
no  claim  for  a  credit  is  to  be  allowed  unless  it  has  been  first  presented 
to  the  accounting  officers  of  the  treasury  for  examination  and  dis- 
allowed, or  unless  it  be  shown  that  the  vouchers  could  not  be  pro- 
cured for  that  purpose,  by  reason  of  absence  from  the  country,  or 
some  unavoidable  accident.    1  Stat,  at  Large,  514,  §§  3,  4. 

These  provisions  show  that  it  is  the  manifest  policy  of  the  law 
to  hold  all  collectors,  receivers,  and  depositaries  of  the  public 
money  to  a  very  strict  accountability.  The  legislative  anxiety  on 
the  subject  culminates  in  requiring  them  to  enter  into  bond  with 
sufficient  sureties  for  the  performance  of  their  duties,  and  in  im- 
posing criminal  sanctions  for  the  unauthorized  use  of  the  moneys. 
Whatever  duty  can  be  inferred  from  this  course  of  legislation  is 
justly  exacted  from  the  officers.  No  ordinary  excuse  can  be  al- 
lowed for  the  non-production  of  the  money  committed  to  their 
hands.  Still  they  are  nothing  but  bailees.  To  call  them  anything 
else,  when  they  are  expressly  forbiden  to  touch  or  use  the  public 
money  except  as  directed,  would  be  an  abuse  of  terms.  But  they 
are  special  bailees,  subject  to  special  obligations.  It  is  evident  that 
the  ordinary  law  of  bailment  cannot  be  invoked  to  determine  the 
degree  of  their  responsibility.  This  is  placed  on  a  new  basis.  To 
the  extent  of  the  amount  of  their  official  bonds,  it  is  fixed  by  special 
contract;  and  the  policy  of  the  law  as  to  their  general  responsi- 
bility for  amounts  not  covered  by  such  bonds  may  be  fairly  pre- 
sumed to  be  the  same.  In  the  leading  case  of  The  United  States  v. 
Prescott,  3  How.  587  (which  was  an  action  on  a  similar  bond  to 
that  now  under  consideration),  the  court  say:  "This  is  not  a  case 
of  bailment,  and  consequently  the  law  of  bailment  does  not  apply 
to  it.  The  liability  of  the  defendant,  Prescott,  arises  out  of  his 
official  bond,  and  the  principles  which  are  founded  on  public 
policy."  After  reciting  the  condition  of  the  bond,  the  court  adds, 
with  a  greater  degree  of  generality,  we  think,  than  the  case  before 
it  required,  **The  obligation  to  keep  safely  the  public  money  is 
absolute,  without  any  condition,  express  or  implied;  and  nothing 
but  the  payment  of  it,  when  required,  can  discharge  the  bond.* 


UNITED  STATES  V.  THOMAS.  699 

This  broad  language  would  seem  to  indicate  an  opinion  that  the 
bond  made  the  receiver  and  his  sureties  liable  at  all  events,  as  now 
contended  for  by  the  government.  But  that  case  was  one  in  whiehi 
the  defence  set  up  was  that  the  money  was  stolen,  and  a  much 
more  limited  responsibility  than  that  indicated  by  the  above  langu-l 
age  would  have  sufficed  to  render  that  defence  nugatory.  And  as 
the  money  in  the  hands  of  a  receiver  is  not  his ;  as  he  is  only  cus- 
todian of  it;  it  would  seem  to  be  going  very  far  to  say,  that  his 
engagement  to  have  it  forthcoming  was  so  absolute,  as  to  be  quali- 
fied by  no  condition  whatever,  not  even  a  condition  implied  in  law. 
Suppose  an  earthquake  should  swallow  up  the  building  and  safe 
containing  the  money,  is  there  no  condition  implied  in  the  law  by 
which  to  exonerate  the  receiver  from  responsibility? 

We  do  not  question  the  doctrine  so  strongly  urged  by  the  counsel 
for  the  government,  that  the  performance  of  an  express  contract 
is  not  excused  by  reason  of  anything  occurring  after  the  contract 
was  made,  though  unforeseen  by  the  contracting  party,  and  though 
beyond  his  control — ^with  the  qualification,  however,  that  the  thing 
to  be  done  does  not  become  physically  impossible;  as,  to  cultivate 
an  island  which  has  sunk  in  the  sea.  It  was  thus  decided  in  the 
leading  case  of  Paradine  v.  Jane,  Aleyn  26 ;  Metcalf  on  Contracts 
212 

It  is  contended  that  the  bond,  in  this  case,  has  the  effect  of  such 
a  special  contract,  and  several  cases  of  actions  on  official  bonds 
have  been  cited  to  support  the  proposition.  Those  principally  re- 
lied on  are  the  cases  of  Muzzy  v.  Shattuck,  1  Denio  233 ;  Common- 
wealth V.  C(mily,  3  Barr  372;  The  State  v.  Harper,  6  Ohio  St.  607, 
and  the  recent  cases  of  Dashiel,  Keehler,  and  Boyden  in  this  court. 
It  must  be  conceded  that  the  language  used  by  the  court,  not  only 
in  the  cases  already  referred  to,  but  in  some  of  the  other  cases  cited, 
seems  to  favor  the  rule  contended  for.  But  in  none  of  them  was 
the  defence  of  overruling  necessity  interposed.  They  were  all 
cases  of  alleged  theft,  or  robbery,  or  some  other  cause  of  loss,  which 
would  have  been  insufficient  to  exonerate  a  common  carrier  from 
liability.  They  all  concur  in  establishing  one  point,  however,  of 
much  importance,  that  a  bond  with  an  unqualified  condition  to  ac- 
count for  and  pay  over  public  moneys  enlarges  the  implied  obliga- 
tion of  the  receiving  officer,  and  deprives  him  of  defences  which 
are  available  to  an  ordinary  bailee ;  but  they  do  not  go  the  length/ 
of  deciding  that  he  thereby  becomes  liable  at  all  events;  although 
expressions  looking  in  that  direction,  but  not  called  for  by  the 
judgment,  may  have  been  used. 


600  LIABILITY  OP  OFFICERS. 

The  case  of  United  States  v.  Prescott  has  already  been  sufficiently 
adverted  to.  The  next,  in  order  of  time,  was  that  of  Muzzy  v. 
Shattuck,  which  was  decided  the  same  year,  1845,  and  in  which  the 
Supreme  Court  of  New  York  construed  the  statutes  of  that  State 
as  making  the  town  collector  a  debtor  for  the  amount  of  taxes  to  be 
collected  by  him,  and  held  him  liable  on  his  bond  notwithstanding 
the  money  was  stolen.  Here  again  the  result  arrived  at  waa  cor- 
rect ;  but  the  reasoning  by  which  it  was  attained  may  be  fairly 
questioned.  The  statutes  of  the  State,  however,  may  have  justified 
the  view  which  was  taken  in  that  case. 

The  next  case  is  that  of  Commonwealth  v.  Comly,  decided  in 
1846.  That  was  an  action  on  the  bond  of  a  collector  of  tolls,  and 
the  same  defence  (of  theft)  was  interposed.  Chief  Justice  Gibson 
refers  to  the  case  of  United  States  v.  Prescott,  and  remarks  that 
"the  responsibility  of  a  public  receiver  is  determined  not  by  the 
law  of  bailment,  which  is  called  in  to  supply  the  place  of  a  special 
agreement  where  there  is  none,  but  by  the  condition  of  his  bond." 
So,  in  the  case  of  The  State  v.  Harper  et  al,  which  was  an  action 
on  the  official  bond  of  a  county  treasurer,  conditioned  for  the  pay- 
ment of  all  moneys  that  should  come  to  his  hands  for  State,  county 
or  township  purposes ;  and  larceny  of  the  money  being  pleaded,  the 
court  say:  "By  accepting  the  office  the  treasurer  assumes  upon 
himself  the  duty  of  receiving  and  safely  keeping  the  public  money, 
and  of  paying  it  out  according  to  law.  His  bond  is  a  contract  that 
he  will  not  fail,  upon  any  account,  to  do  these  acts;"  and  the  de- 
fence of  larceny  was  overruled. 

It  is  unnecessary  to  examine  the  cases  further  in  detail.  It  ap- 
pears from  them  all  (except  perhaps  the  New  York  case)  that  the 
official  bond  is  regarded  as  laying  the  foundation  of  a  more  strin- 
gent responsibility  upon  collectors  and  receivers  of  public  moneys. 
It  is  referred  to  as  a  special  contract,  by  which  they  assume  obli- 
gations with  regard  to  the  safekeeping  and  payment  of  those 
moneys,  and  as  an  indication  of  the  policy  of  the  law  with  regard 
to  the  nature  of  their  responsibility.  But,  as  before  remarked,  the 
decisions  themselves  do  not  go  the  length  of  making  them  liable  in 
cases  of  overruling  necessity 

So  much  stress  has,  in  almost  every  case,  been  laid  upon  the  bond 
as  forming,  either  directly  or  indirectly,  the  basis  of  a  new  rule  of 
responsibility,  that  it  seems  especially  important  to  ascertain  what 
are  the  legal  obligations  that  spring  from  such  an  instrument.  The 
learned  judges,  in  the  great  generality  of  the  remarks  made  in 
some  of  the  cases  referred  to,  with  regard  to  the  liability  of  a  re- 


UNITBD  STATES  V.  THOMAS.  601 

ceiving  officer,  and  especially  of  his  sureties,  by  virtue  of  his  bond, 
have  evidently  overlooked  what  we  conceive  to  be  a  very  important 
and  vital  distinction  between  an  absolute  agreement  to  do  a  thing 
and  a  condition  to  do  the  same  thing,  inserted  in  a  bond.  In  the 
latter  case,  the  obligor,  in  order  to  avoid  the  forfeiture  of  his  obliga- 
tion, is  not  bound  at  all  events  to  perform  the  condition,  but  is 
excused  from  its  performance  when  prevented  by  the  law  or  by  an 
overruling  necessity.  And  this  distinction,  we  think,  affords  a  solu- 
tion to  the  question  involved  in  this  case. 


Of  course  the  above  rule  does  not  apply  to  a  money  bond  given 
for  a  debt,  where  the  condition  is  simply  for  the  payment  of  a  less 
sum  of  money  than  the  penalty;  for  there,  as  the  books  say,  the 
condition  is  of  the  same  nature  as  the  obligation  itself,  and  not 
collateral  to  it.  The  bond  in  suit  is  not  such  a  money  bond.  The 
condition  of  an  official  bond  is  collateral  to  the  obligation  or  pen- 
alty; it  is  not  based  on  a  prior  debt,  nor  is  it  evidence  of  a  debt; 
and  the  duty  secured  thereby  does  not  become  a  debt  until  default 
be  made  on  the  part  of  the  principal.  Until  then,  as  we  have  seen, 
he  is  a  bailee,  though  a  bailee  resting  under  special  obligations. 
The  condition  of  his  bond  is,  not  to  pay  a  debt,  but  to  perform  a[ 
duty  about  and  respecting  certain  specified  property  which  is  not( 
his,  and  which  he  cannot  use  for  his  own  purposes.  In  the  case  of^ 
Farrar  and  Brown  v.  United  States,  5  Peters  373,  the  question  being 
whether  sureties  were  liable  for  defaults  made  prior  to  the  giving 
of  the  bond,  the  court  say:  **for  any  sums  paid  to  Rector  (the 
principal)  prior  to  the  execution  of  the  bond,  there  is  but  one 
ground  on  which  the  sureties  could  be  held  answerable  to  the  United 
States,  and  that  is  the  assumption  that  he  still  held  the  money  in 
bank  or  otherwise.  If  still  in  his  hands,  he  was  up  to  that  time 
bailee  of  the  government;  but  on  the  contrary  hypothesis  he  had 
become  a  debtor  or  defaulter  to  the  government,  and  his  office  was 
already  consummated."  That  is,  as  custodian  of  the  money  he  is 
bailee  of  the  government — not  a  debtor.  What  makes  him  a  debtor 
or  defaulter  is  the  very  question  at  issue.  When  he  becomes  such, 
then  he  and  his  sureties  are  liable  until  the  amount  is  paid,  as  we 
held  in  the  late  case  of  Bevans,  before  referred  to.  Until  then, 
neither  he  nor  they  are  liable  on  the  bond. 

We  think  that  the  case  is  within  the  law  as  laid  down  by  Lord 
Coke,  and  that  the  receiver,  and  especially  his  sureties,  are  en- 
titled to  the  benefit  of  it;    and  that  no  rule  of  public  policy  re- 


602  LIABILITY  OP  OPPICEES. 

quires  an  officer  to  account  for  moneys  which  have  been  destroyed 
by  an  overruling  necessity,  or  taken  from  him  by  a  public  enemy, 
without  any  fault  or  neglect  on  his  part. 

Judgment  affirmed. 
Justices  SwAYNE,  Miller  and  Strong  dissented. 


In  some  of  the  states  the  liability  of  an  officer  under  bond  Is  that  of  an 
ordinary  bailee  for  hire.  Where  this  rule  is  adopted  he  is  liable  only  for 
negligence,  even  where  the  funds  in  his  charge  are  stolen.  Cumberland 
V.  Pennell,  69  Me.  357;  State  v,  Copeland.  96  Tenn.  296. 


CHAPTER  X. 

THE  MANDAMUS. 

I.    Ghabaoteb  of  Duty  Whose  Performancb  Will  Be 

Enfobcbd. 

STATE  EX  REL.  V.  WHITESIDES. 

Supreme  Court  of  South  Carolina.    April,  1889. 
30  S.  C.  579. 

Mr.  Chief  Justice  Simpson. 

There  is  no  serious  dispute  as  to  the  main  facts  of  the  case,  and 
these  are  sufficiently  stated  above.  The  difficulty,  however,  grows 
out  of  the  legal  questions  raised,  and  these  involve  primarily  a  dis- 
cussion of  the  law  of  mandamus,  and  its  application  to  these  con- 
ceded facts;  and,  secondly,  the  constitutionality  of  the  recent  act 
of  the  legislature,  known  as  **An  act  to  provide  for  the  payment 
of  township  bonds,  issued  in  aid  of  railroads  in  this  State.  Ap- 
proved December  22,  1888."  20  Stat.  12.  These  questions  will  be 
considered  in  their  order. 

The  principles  which  govern  in  mandamus  cases,  especially  where 
the  proceeding  is  against  a  public  officer,  are  very  plain  and  simple, 
and  are  within  a  very  narrow  compass ;  so  much  so  as  to  need  no 
elaboration  here  nor  the  citation  of  authorities.  They  may  be 
briefly  stated  thus :  Where  a  party  has  a  legal  right,  to  the  enjoy- 
ment of  which  the  discharge  of  a  ministerial  duty  on  the  part  of 
a  public  officer  is  necessary,  and  he  has  no  other  adequate  remedy, 
in  case  the  officer  refuses  to  discharge  this  duty,  mandamus  is  the 
proper  proceeding.  High  Ex.  Leg.  Bern.,  section  34  et  seq.  This 
writ  was  once  a  prerogative  writ,  and  in  England  was  supposed  to 
issue  at  the  instance  of  the  crown,  to  meet  and  remedy  otherwise 
remediless  cases  at  his  discretion.  But  in  this  country  it  has  lost 
its  prerogative  character,  and  though  issued  in  the  name  of  the 
State,  yet  it  belongs  to  the  courts,  and  has  become  a  form  of  action, 
governed  by  established  rules  and  applied  for  and  issued  under 
established  forms.    Upon  application  for  this  writ  against  a  public 

603 


604  STATE  V.   WHITE8IDE8. 

officer,  the  questions  to  be  considered  are :  1st.  Is  the  duty  claimed 
a  ministerial  duty?  2d.  Has  the  petitioner  a  legal  right,  for  the 
enjoyment,  protection,  or  redress  of  which  the  discharge  of  said 
duty  is  necessary?  3d.  Has  he  no  other  adequate  and  sufficient 
remedy  ?  High,  section  10.  And  these  are  the  questions  before  us. 
The  petitioners  ask  that  the  chairman  of  the  county  conmaission- 
ers  of  York  county  shall  be  required  to  endorse  the  certificate  of 

the  engineer, and  that  the  clerk  of  the  board  shall 

attest  his  signature.  Can  the  performance  of  these  acts  be  ordered 
as  ministerial  duties?  What  is  a  ministerial  duty  on  the  part  of 
a  public  officer?  We  think  it  may  be  defined  briefly,  yet  fully,  to 
be  some  duty  imposed  expressly  by  law,  not  by  contract  (High, 
section  25) ;  or  arising  necessarily  as  an  incident  to  the  office,  in- 
volving no  discretion  in  its  exercise,  but  mandatory  and  imperative. 
High,  section  42.  Now,  is  the  duty  claimed  here  by  the  petitioners 
at  the  hands  of  the  respondents  a  duty  of  that  character?  There 
is  certainly  no  act  or  law  of  force  expressly  imposing  this  duty  upon 
them.  Nor  is  it  a  duty  necessarily  arising  as  an  incident  to  the 
offices  which  they  hold.  Nor  was  it  contracted  in  furtherance  of 
any  legal  duty  attempted  by  them,  and  which  cannot  now  be  com- 
pleted without  the  performance  of  this. 

This  being  so,  we  do  not  see  how  any  ministerial  duty,  in  the  sense 
as  defined  above,  could  attach. 

It  is  said,  however,  that  the  recent  act,  supra,  has  validated  these 
bonds,  and  has  legalized  all  the  proceedings  under  which  they  were 
executed,  and  the  conditions  upon  which  they  were  to  be  delivered 
to  the  railroad,  including  the  contract  to  have  the  certificate  of  the 
engineer  endorsed  by  the  chairman  and  attested  by  the  clerk.  We 
think  this  is  a  mistake.  We  do  not  understand  that  the  act  of  1888, 
supra,  has  had  that  effect;  nor  was  such  its  intention,  in  so  far  as 
the  proceedings  of  the  different  townships  were  concerned. 

.  ■  .  .  .  .  We  think  the  act  in  question  is  constitutional  and 
valid. 

But  conceding  this,  we  do  not  see  how  it  warrants  the  mandamtis 
prayed  for.  There  is  certainly  nothing  in  this  act  expressly  com- 
manding the  respondents  to  perform  the  stipulations  of  the  contract 
upon  which  this  proceeding  is  based,  nor  is  there  any  duty  imposed 
thereby  upon  the  respondents  to  which  the  suggested  acts  are  neces- 


STATE  EX  REL  BRICKMAN  V.  WILSON.  605 

sarily  incidents,  and  therefore  there  is  no  ministerial  duty  in  this 
regard  attaching  to  them  to  be  enforced  by  the  writ  prayed  for. 

•  ••  ••••••• 

The  petition  must  therefore  be  dismissed,  and  it  is  so  adjudged 

and  decreed. 

•  ••  ••••••• 

Mandamus  may  not  be  used  to  enforce  the  performance  of  a  contract. 
State  V.  Turnpike  Co.,  16  Ohio  St.  308. 


II.    Ministerial  and  Discretionary  Duty. 

STATE  EX  REL.  BRICKMAN  V.  WILSON. 

Supreme  Court  of  Alabama.    November,  1898.  v 

123  Ala.  259. 

McClellan,  C.  J.  This  is  a  petition  by  the  State  on  the  relation 
of  Brickman  for  mandamus  to  issue  to  Massey  Wilson,  as  Clerk  of 
the  House  of  Representatives,  and  to  R.  P.  McDavid  as  Secretary 
of  State. 

That  the  relator  has  such  interest  in  having  the  integrity  of  the 
journal  conserved  in  the  manner  prayed  as  authorizes  him  to  ex- 
hibit this  petition,  and  will  entitle  him  to  the  relief  he  seeks  if  the 
duty  of  expurgation  is  upon  the  Secretary  of  State,  we  do  not  doubt. 
His  attitude  bears  a  striking  similitude  to  that  of  relators  who  seek 
to  coerce  by  mandamus  the  issuance  to  them  of  licenses  to  carry  on 
certain  occupations  and  businesses;  and  it  is  well  settled  in  this 
court  and  generally  that  where  the  duty  of  issuing  such  licenses  is 
ministerial,  mandamus  is  the  appropriate,  indeed  the  only,  remedy 
for  its  enforcement.  This  relator's  interest  in  the  premises  is  to 
carry  on  a  business  for  which  a  license  has  all  along  been  required 
upon  the  license  which  the  law  requires  and  which  has  been  issued 
to  him,  without  being  subjected  to  additional  license  taxation  in 
consequence  of  the  failure  of  the  Secretary  of  State  to  perform  an 
alleged  ministerial  duty :  he  asks  that  that  ofiScer  be  ordered  to  per- 
form that  duty,  to  the  end  that  he  may  carry  on  the  business  in 
which  he  is  now  engaged ;  and  his  interest  and  right  is  the  same  as 
if  the  duty  upon  that  officer  was  to  issue  him  a  license,  instead  of 
being  in  effect  to  authorize  him  to  continue  to  carry  on  the  business 
without  taking  out  or  paying  for  an  additional  license. 


606  THE  MANDAMUS. 

Nor,  again  assuming  the  Secretary  of  State  is  under  the  alleged 
duty — has  the  relator  any  other  remedy  than  by  the  writ  of  man- 
damus to  enforce  the  performance  of  that  duty.  The  ''other 
remedy,"  the  existence  of  which  will  oust — or  rather  prevent  the 
invocation  of — jurisdiction  by  mandamus,  must  be  equally  conveni- 
ent, beneficial  and  effective  as  mandamus.  Raish  v.  Board  of  Edu- 
cation, 81  Cal.  542 ;  Overseers  v.  Overseers,  82  Pa.  St.  275.  It  must 
be  a  remedy  which  will  place  the  relator  in  statu  quo,  that  is,  in  the 
same  position  he  would  have  been  had  the  duty  been  performed. 
Etheridge  v.  Hall,  7  Port.  47.  Indeed,  it  must  be  more  than  this: 
it  must  be  a  remedy  which  itself  enforces  in  some  way  the  perform- 
ance of  the  particular  duty,  and  not  merely  a  remedy  which  in  the 
end  saves  the  party  to  whom  the  duty  is  owed  unharmed  by  its  non- 
performance.  Sessions  <&  Leary  v.  Boykin,  78  Ala.  328 ;  2  Spelling 
^  Extra  Relief,  §  1375;  Merrill,  Mandamus,  §  53.  Hence  it  is  that 
while  mandamus  will  not  lie  to  enforce  a  duty  which  may  be  coerced 
by  the  ordinary  civil  actions  at  law,  as  where  the  duty  is  merely  to 
pay  money,  or  to  deliver  property — it  does  lie  whenever  such  actions 
cannot  be  availed  of  to  the  specific  performance  of  the  official  act 
which  the  relator  is  entitled  to  have  performed — as  where  a  dis- 
bursing officer  refuses  to  draw  a  warrant  it  is  his  duty  to  draw,  in 
which  case  an  action  for  damages,  while  it  would  eventually  save  the 
relator  harmless,  would  not  coerce  the  discharge  of  the  specific  duty. 
And  so  it  is  here :  This  relator  might  defend  against  an  indictment 
for  carrying  on  his  business  without  paying  the  additional  license 
tax  intended  to  be  imposed  by  this  alleged  statute,  or,  paying  it 
upon  compulsion,  he  might  recover  back  the  amount  so  paid,  upon 
showing  the  falsifications  of  the  journal  and,  of  consequence,  the 
invalidity  of  the  supposed  enactment ;  but  neither  of  these  remedies 
would  be  as  convenient,  beneficial  and  effective  as  a  proceeding  by 
mandamus,  neither  would  put  him  in  statu  quo,  as  that  expression 
is  employed  in  our  decisions,  and  neither  would  compel  the  expurga- 
tion of  the  journal  by  the  Secretary  of  State.  It  is  plain,  we  think, 
that  those  assignments  of  demurrer  which  proceed  upon  the  theory 
that  the  petition  discloses  another  adequate  remedy  for  the  relator 
are  not  well  taken. 

There  remains  for  consideration  but  one  question.  It  is  abstractly 
the  most  important  in  the  case.  It  is  also  the  most  difficult.  It  is 
whether  the  Secretary  of  State  was  under  a  duty  to  erase  and  ex- 
punge the  unauthorized  entries  from  the  house  journal.  That  he 
was  under  such  duty  must  be  made  to  clearly  appear  before  the  writ 
of  mandamus  will  lie  against  him  in  respect  of  it.    If  the  duty  exists 


STATE  EX  REL  BRICKMAN  V.  WILSON.  607 

it  is  purely  statutory :  the  Secretary  of  State  has  no  duties  to  per- 
form except  those  imposed  upon  him  by  the  Constitution  and  stat- 
utes of  the  State.  Mandamus  is  a  conservative,  not  a  creative  rem- 
edy; it  enforces  existing  duties  but  does  not  impose  new  duties. 
By  it  the  officer  may  be  coerced  to  an  act  which  it  was  his  duty  to  , 
perform  without  it,  but  to  no  act  as  to  which  he  was  under  no  duty  J 
before  its  issuance.  And  the  duty  must  be  clear  upon  the  statute. 
The  rule  as  to  the  duty  and  the  right  as  to  its  performance  is  vari- 
ously and  not  always  accurately  expressed  in  the  adjudged  cases. 
The  right  must  be  "certain  and  positive."  Beaman  v.  Board,  &c., 
42  Miss.  237.  The  duty  must  be  "clear,  and  if  there  be  doubt  in- 
volving necessity  for  litigation,"  the  writ  will  not  lie.  Townes  v. 
Nichols,  73  Me.  515.  There  must  be  "a  specific  legal  right,  and  a 
positive  duty."  State  ex  rel.  v.  Bumside,  33  S.  C.  276.  "Duty 
must  be  specifically  enjoined  by  law. ' '  Ferlorn  v.  Carriage  Co.,  42 
Ohio  St.  30.  Right  "must  be  clearly  established.  If  right  doubtful, 
writ  will  be  refused."  M.  &  0.  E.  B.  v.  State,  132  111.  559.  "Writ 
will  not  issue  where  there  is  a  substantial  doubt  of  respondent's 
duty. ' '  State  ex  rel.  v.  Buhler,  90  Mo.  560.  * '  Will  not  be  awarded 
when  there  is  a  doubt  of  the  relator's  right  to  the  relief  sought." 
State  ex  rel.  v.  Wallace,  46  111.  415.  ' '  Duty  must  be  clearly  enjoined 
by  law."  Draper  v.  Noteweare,  7  Colo.  276.  "It  must  be  clearly 
commanded  by  law."  Pickett  v.  White,  22  Tex.  559.  "When  the 
legal  right  is  doubtful  the  writ  will  be  denied."  State  ex  rel.  v. 
Appleby,  25  S.  C.  100.  Issued  when  there  is  a  failure  to  perform 
"plain  official  duty"  Maddox  \.  Neal,  45  Kan.  121,  not  "when 
well  founded  doubt  as  to  the  alleged  duty  arises. ' '  State  ex  rel.  v. 
Johnson,  100  111.  537;  People  v.  Hatch,  33  111.  9.  "Where  the  val- 
idity of  a  judgment  of  conviction  is  doubtful,  writ  will  not  issue  to 
enforce  it."  Rex  v.  Broderif,  5  B.  &  C.  239 ;  Regina  v.  Ray,  44  Up. 
Can.  Q.  B.  17.  The  act  sought  to  be  compelled,  must  be  "clearly 
defined  and  enjoined  by  law."  Glasscock  v.  Com'r.,  3  Tex.  51. 
' '  The  writ  does  not  lie  to  compel  a  county  judge  to  perform  an  act 
which  the  law  does  not  specifically  enjoin  upon  him,  as  a  duty  re- 
sulting from  his  office."  State  ex  rel.  v.  Napier,  7  la.  425.  The 
duty  must  be  either  imposed  upon  the  officer  "by  some  express 
enactment  or  necessarily  result  from  the  office  he  holds. ' '  Pond  v. 
Parrott,  42  Conn.  13.  Officer  must  be  "expressly  authorized  by 
law."  Chisholm  v.  McGehee,  41  Ala.  192.  "A  clear,  specific  legal 
right"  to  have  the  act  performed  must  be  shown.  3  Brick.  Dig., 
p.  625. 

As  we  have  said,  some  of  the  foregoing  expressions  are  inaccurate 


608  THE  MANDAMUS. 

or  misleading.  A  doubt  that  may  arise  in  the  mind  of  the  court  in 
matter  of  law  as  to  the  existence  of  the  duty  will  not,  as  some  of  the 
cases  seem  to  hold,  require  or  justify  the  denial  of  the  writ :  It  is 
the  court's  province  and  duty  to  solve  all  such  doubts  and  declare 
the  duty  as  it  finds  it  to  be  after  its  misgivings  as  to  the  intent  and 
meaning  of  the  statute  involved  or  as  to  any  other  question  of  law 
have  been  eliminated.  Substantial  doubt  as  to  whether  the  facts  of 
the  particular  case  present  the  conditions  upon  which  the  officer  is 
bound  to  act,  may,  it  would  seem,  justify  or  require  a  refusal  of  the 
writ.  Of  course  the  doubts  of  the  officer  as  to  his  duty  are  of  no 
consequence.  State  v.  Tarpen  (Ohio),  1  N.  E.  209.  Again,  the  duty 
need  not  be  "specifically  enjoined"  or  ** expressly  prescribed"  by 
law.  The  true  rule  in  this  connection,  we  apprehend,  is  that  the 
duty  must  be  imposed  in  terms  by  the  statute,  in  cases  like  the  one 
in  hand,  or  must  result  therefrom  by  fair  and  reasonable  construc- 
tion or  interpretation :  it  must  appear  from  the  statute  in  terms  or 
by  fair  implication.  Mobile  &  Ohio  B.  R.  Co.  v.  Wisdom,  5  Heisk. 
(Tenn.)  125;  Brown  v.  Duane,  14  N.  Y.  S.  450;  State  v.  Balche,  89 
Mo.  188 ;  Pond  v.  Parrott,  42  Conn.  13. 

And  the  question  recurs :  Is  the  act  which  relator  seeks  through 
this  proceeding  to  have  performed  by  the  Secretary  of  State  im- 
posed as  an  official  duty  upon  him,  expressly  or  by  implication  by 
statute?  ....  The  legislature  has  not  said  that  it  shall 
be  the  duty  of  the  Secretary  of  State  to  erase  unauthorized  mat- 
ter interpolated  into  these  records,  but  it  has  said  only  that  he 
shall  keep  the  records.  Is  the  duty  to  erase  a  fair  and  just  impli- 
cation from  the  duty  to  keep?    .... 

Is  any  such  duty  to  be  gotten  by  implication  from  the  language 
of  the  statute ?  We  think  not.  Let  the  phrase  "to  keep"  be  given 
its  broadest  meaning,  let  it  involve  the  duty  to  preserve,  the  duty 
to  prevent  spoliation,  the  duty  to  prevent  interlineation,  the  duty 
to  prevent  entries  of  any  and  every  kind  upon  the  record  as  it 
comes  to  the  Secretary  of  State,  the  duty  to  bring  back  the  record 
when  it  is  wrongfully  taken  from  his  office,  the  duty  to  replace 
leaves  that  have  been  torn  from  it  if  he  can  recover  them,  the  duty 
to  blot  out  ink  that  may  be  splotched  upon  the  writing  so  as  to 
render  it  illegible,  let  the  duty  by  implication  be  extended  to  all 
these  things,  and  yet  it  falls  short  of  imposing  upon  the  Secretary 
of  State  the  duty  of  conferring  on  him  the  right  to  strike  from 
this  record  any  writing  purporting  to  be  part  of  it  that  may  at  any 
time  appear  upon  it.  For  if  he  has  the  right  and  it  is  his  duty 
to  erase  any  one  entry  upon  assurance  more  or  less  certain  of  its 


STATE  EX  EEL  BRICKMAN  V.  WILSON.  609 

falsity  he  has  the  same  right  and  is  under  a  like  duty  to  expunge 
any  other  entry  or  any  part  of  what  appears  to  be  the  record  upon 
like  assurance  of  its  falsity. 

And  where  there  are  the  conflicting  statements  of  two,  he  may 
rely  upon  the  false  statement  and  discredit  the  true  one.  And 
what  would  be  the  result?  A  solemn  and  true  record  would  be 
destroyed  beyond  recovery  or  substitution,  and  the  most  important, 
formal  and  constitutional  exercise  of  power  by  one  of  the  great 
departments  of  government,  resulting  in  statutes  of  the  highest 
moment  to  the  commonwealth,  involving,  it  may  be,  the  life,  lib- 
erty and  property  of  the  citizen,  would  go  for  naught.  This  would 
not  be  **to  keep  the  records  of  the  general  assembly,"  but  to  destroy 
them.  And  all  this  by  the  purely  ministerial  ofiBcer,  who  is  charged 
with  their  preservation,  acting  ex  parte,  or  rather  upon  his  own 
motion,  without  power  to  examine  witnesses,  or  even  to  receive  affi- 
davits, while  the  courts,  whose  business  it  must  be  to  determine 
upon  proper  presentation,  what  does  constitute  the  records  of  the 
general  assembly,  are  not  invoked  and  may  be  powerless  to  season- 
ably interfere  to  preserve  those  records  from  spoliation.  It  is  no 
answer  to  say  that  in  the  case  at  bar  the  court  is  to  determine 
whether  there  is  an  interpolation  in  the  house  journal  and  in  what 
it  consisted,  and  order  its  expurgation  if  it  is  found  to  be  unau- 
thorized. The  court  in  this  proceeding  can  only  do  that  after  de- 
termining that  it  was  the  Secretary  of  State's  duty  in  the  absence 
of  all  action  by  any  court  to  have  so  determined  and  thereupon 
proceeded  to  erase  the  alleged  foreign  matter;  and  the  courts  can- 
not so  adjudge  in  this  instance  without  affirming  for  all  time  the 
power  and  duty  of  that  officer  to  pass  upon  what  these  records  con- 
tain and  to  expunge  all  that  he  finds  in  them  that  he  thinks  does 
not  belong  there 

The  question  presented  is wliether 

the  Secretary  of  State  was  under  a  duty  to  expunge  these  en- 
tries. We  say  that  he  was  not,  because  such  duty  would 
be  so  fraught  with  and  productive  of  evil  in  the  way  of 
the  spoliation  and  mutilation  of  the  very  record  which  the 
legislature  has  charged  the  Secretary  of  State  to  safely  keep 
and  preserve  or,  at  the  very  best,  to  subject  it  to  imminent 
risks  of  destruction,  as  that  the  law-makers  could  not  have  intended 
to  have  imposed  it — could  not,  while  expressly  providing  for  preser- 
vation, have  intended  to  afford  opportunity  and  occasion  for  de- 
struction— and  an  implication  will  not  be  allowed  which  is  not  only 
39 


610  THE  MANDAMUS. 

not  in  line  with  the  expressed  intent  but  offers  a  means  of  defeat- 
ing that  intent.  A  duty  which  puts  it  in  the  power  of  a  minis- 
terial officer  without  adversary  proceedings,  without  notice  to  any- 
body, without  record  of  his  acts  and  without  his  proceeding  being 
subject  to  review,  to  change,  amend,  and  destroy  public  records  of 
the  most  vital  importance  to  the  State  and  to  its  citizens  cannot  be 
implied  from  the  imposition  upon  him  of  the  duty  to  safely  keep 
and  preserve  those  records :  a  power  to  thus  destroy,  even  with  the 
honest  intent  to  preserve,  cannot  be  implied  from  a  duty  to  keep, 
guard  and  protect.  And  this  is  our  conclusion,  that  from  the 
statute  which  requires  the  Secretary  of  State  to  keep  the  house 
journal  after  it  has  been  delivered  into  his  custody  by  the  clerk  of 
the  house,  there  is  no  implication  of  a  duty  or  right  in  him  to  erase 
and  expunge  any  entry  that  he  may  at  any  time  find  in  that  journal 
or  upon  the  margin  of  the  paper  upon  which  it  is  written  down, 
and  that  officer  has  no  such  right  nor  is  he  under  any  such  duty. 

The  record  presents  no  error,  and  the  judgment  of  the  city  court 

must  be  affirmed. 

Alfirmed. 

See  also  People  v.  W.  T.,  L.  E.  ft  W.  R.  R.  Ck).,  104  N.  Y.  58,  supra.  A 
civil  suit  for  damages  against  an  individual  is  not  an  adequate  remedy 
nor  is  a  suit  on  an  official  bond.  People  v.  Green.  58  N.  Y.  295,  306,  su- 
pra; State  v.  Dougherty,  45  Mo.  294;  but  a  suit  for  damages  against  a 
municipal  corporation  is  an  adequate  remedy  where  damages  are  compe- 
tent as  a  means  of  relief.  King  William  J.  J.  v.  Munday,  2  Leigh  Va. 
165.  The  remedy  by  indictment  is  not  adequate.  Fremont  v.  Crippen, 
10  Cal.  211;  People  v.  Moyer,  10  Wendell  (N.  Y.)  393. 


EX  PARTE  HURN. 


Supreme  Court  of  Alabama.    November,  1890. 
92  Ala.  102. 

Application  by  petition  by  W.  P.  Hum,  for  a  mandamus  to  the 
City  Court  of  Montgomery,  Hon.  Thomas  M.  Arrington  presiding, 
on  the  facts  stated  in  the  opinion. 

Coleman,  J.  The  petitioner,  Hum,  having  been  arrested  on 
the  criminal  charge  of  fraudulently  obtaining  goods  on  a  credit, 
was  searched  by  the  officer  making  the  arrest,  who  took  from  him 


EX  PARTE  HURN.  611 

eleven  hundred  and  twenty-four  and  40-100  dollars,  found  con- 
cealed in  his  clothing.  The  prisoner  and  the  money  were  deliv- 
ered to  the  sheriff  of  the  county.  An  attachment,  having  been  sued 
out  against  the  defendant  Hurn,  was  placed  in  the  hands  of  the 
sheriff,  and  by  him  levied  upon  the  money  in  his  possession.  This 
was  followed  by  a  writ  of  garnishment  executed  by  the  coroner  of 
the  county  upon  the  sheriff'.  The  attachment  and  garnishment 
suits  were  made  returnable  to  the  City  Court  of  Montgomery. 

The  sheriff,  as  garnishee,  filed  his  answer  setting  up  the  facts 
and  circumstances  under  which  he  came  in  possession  of  the  money, 
paid  the  money  into  court,  and  prayed  that  '  *  all  proper  issues  and 
orders  be  made  up  under  the  direction  of  the  court,  in  order  that 
it  might  be  ascertained  to  whom  the  money  should  be  paid."  The 
defendant  Hurn  moved  the  court  for  an  order,  that  the  money  be 
restored  to  him,  "upon  the  grounds  that  his  person  had  been 
searched  in  violation  of  law,  and  the  money  wrongfully,  illegally 
and  violently  taken  from  his  person. ' '  The  suit  by  attachment  and 
upon  which  the  garnishment  issued  were  still  pending  and  undis- 
posed of  at  the  hearing  of  the  motion. 

The  court  refused  to  permit  moveant  to  introduce  affidavits  in 
support  of  the  facts  stated  in  his  petition ;  and  made  the  following 
order : 

"April  14,  1891.    Motion  overruled. 

1st.  Because  the  court  is  without  jurisdiction.  2d.  Because  the 
facts  set  out  in  the  motion  present  an  issue  to  be  decided  upon  by 
the  jury  in  the  trial  of  the  attachment  suit." 

From  this  order  overruling  the  motion,  the  petitioner  applies  to 
this  court  for  a  mandamus  "upon  the  grounds  that  the  court  re- 
fused to  hear  and  determine  the  motion,"  etc. 

In  Ex  parte  Redd,  73  Ala.  549,  it  was  declared  that  the  coercive 
process  of  mandamus  is  proper  when  an  inferior  court  refuses  to 
proceed  to  judgment  in  a  case  in  which  the  law  makes  it  his  duty 
to  act.     This  court  compels  judgment,  but  will  not  control  it. 

In  Ex  parte  Schmidt  and  Smith,  62  Ala.  254,  it  was  held  that 
the  writ  would  lie  to  compel  the  execution  of  ministerial  duties  in 
all  proper  cases,  but  would  not  be  awarded  to  order  or  direct  what 
judgment  shall  be  rendered  in  any  given  ease,  nor  can  its  powers 
be  invoked  to  correct  any  error  in  the  final  judgment  or  decree  of 
an  inferior  court.  In  such  cases  there  is  an  adequate  remedy  by 
appeal.  Ex  parte  Echols,  39  Ala.  700 ;  Ex  parte  State  Bar  Associ- 
ation, 8  So.  Rep.  768. 

In  the  case  of  petitioner,  the  court  overruled  the  motion.    The 


612  THE  MANDAMUS. 

motion  has  been  disposed  of  by  judicial  action  of  the  court. 
Whether  the  court  erred  in  the  order  overruling  the  motion,  or  in 
not  receiving  in  evidence  the  affidavits  offered  in  support  of  the 
petition,  or  whether  the  reasons  assigned  by  the  court  for  over- 
ruling the  motion  are  sufficient,  cannot  be  reviewed  on  the  applica- 
tion for  the  writ  of  mandamus.  Such  questions  are  revisable  only 
by  appeal.  The  remedy  by  appeal  seems  to  have  been  resorted  to 
in  the  cases  cited  by  appellant. 

In  any  view  we  take  of  the  case,  the  application  for  mandamus 
must  be  denied. 

Mandamus  denied. 

The  courts  will,  however,  on  mandamus,  correct  a  clear  ahuse  of  dis- 
cretion. Illinois  State  Board  of  Dental  Examiners  v.  People,  123  111.  227, 
supra,  and  will  force  an  authority  to  exercise  its  discretion  one  way  or 
another.    Commonwealth  v.  Court  of  Illinois,  2  Pickering  (Mass.)  414. 


III.     Acts  Impossible  of  Perfobmance. 

COUNTY  COMMISSIONERS  V.  JACKSONVILLE. 

Supreme  Court  of  Florida.    June,  1895. 
36  Fla.  196. 

This  is  a  proceeding  by  mandamus,  instituted  by  the  city  of 
Jacksonville  against  the  County  Commissioners  of  Duval  county, 
to  require  them  to  turn  over  to  the  municipal  authorities  of  said 
city  one-half  of  the  amount  realized  from  a  special  tax  for  public 
roads  and  bridges  levied  and  collected  on  the  property  within  the 
corporate  limits  of  said  city,  under  section  17,  chapter  4014,  laws  of 
1891. 

Mabby,  C.  J. 

The  only  other  contention  demanding  any  discussion  is,  that  the 
peremptory  writ  commands  the  county  commissioners  to  forthwith 
turn  over  to  the  municipal  authorities  of  Jacksonville  $5,746.74. 
when,  as  shown  by  the  return,  only  $758.91  remained  in  the  treas- 
ury to  the  credit  of  the  public  road  fund.  The  case  was  disposed 
of  on  the  alternative  writ  and  return  thereto,  and  as  shown  by 


COUNTY  COMMISSIONERS  V.  JACKSONVILLE.  613 

the  return,  one-half  of  the  amount  collected  and  paid  into  the 
county  treasury  on  property  in  the  city  of  Jacksonville  as  a  road 
fund  for  the  year  1891,  1892  and  1893  was  $8,455.79.  The  sum  of 
$2,709.05,  it  is  conceded,  had  been  paid,  and  the  balance  amounted 
to  $5,746.74.  This  last  sum  is  the  amount  ordered  by  the  court  in 
the  peremptory  writ  to  be  immediately  turned  over  to  the  city 
authorities.  The  return  distinctly  alleges  that  the  whole  amount 
has  been  required  and  used  for  the  purpose  of  keeping  the  county 
roads  and  bridges  in  good  repair,  except  the  sum  of  $758.91,  the 
balance  remaining  in  the  hands  of  the  county  treasurer.  Accord- 
ing to  the  return  of  the  county  commissioners,  it  is  clearly  shown 
that  the  county  had  expended  all  the  road  and  bridge  fund  except 
the  amount  stated,  and  that  the  only  sum  received  by  the  city 
authorities  was  $2,746.05.  The  county  had  expended  largely  the 
city's  part  of  the  road  money,  but  the  money,  as  is  clearly  shown, 
is  not  in  the  county  treasury  to  be  turned  over,  and  the  question 
arises;  to  what  extent  will  the  remedy  of  mandamus  apply?  The 
writ  of  mandamus  is  a  discretionary  remedy,  and  while  the  courts 
will  apply  [it]  in  proper  cases,  they  often  refuse  it  when  it  would 
be  attended  by  no  beneficial  results.  State  ex  rel.  v.  Commission^ 
ers  of  Marion  Co.,  27  Fla.  438,  8  So.  Rep.  749.  A  peremptory  writ 
of  mandamus  will  not  usually  issue  commanding  an  officer  to  do 
what  is  not  within  his  power  to  do,  and  though  by  putting  it  out 
of  his  power  to  perform  a  duty  he  may  become  liable  in  damages, 
still  where  he  cannot  perform  the  act,  and  this  is  clear  to  the  court, 
mandamus  will  not  be  issued  against  him.  This  rule  has  been  ap- 
plied to  public  officers  who  have  improperly  diverted  funds  in  their 
hands  or  under  their  control  so  that  they  were  unable  to  comply 
with  some  duty  in  reference  to  their  disposal.  Rice  v.  Walker,  44 
la.  458 ;  Bates  v.  Porter,  74  Cal.  224 ;  Universal  Trustees  v.  Trustees 
of  Columbia  Township,  6  Ohio  446,  s.  c.  27  Am.  Dec.  267;  State 
ex  rel.  Board  of  Freeholders  v.  Township  of  Lacey,  42  N.  J.  L. 
536;  People  ex  rel.  v.  Tremain,  29  Barb.  96;  State  ex  rel.  v.  City 
of  New  Orleans,  34  La.  Ann.  469 ;  Township  Board  of  Education  v. 
Boyd,  58  Mo.  276.  Under  the  showing  made  we  think  the  court 
should  not  have  undertaken  to  compel  the  county  commissioners  to 
turn  over  money  that  was  not  under  their  control,  and  which  it 
was  not  in  their  power  to  do  as  officials  of  the  county.  The  judg- 
ment should  have  commanded  the  county  commissioners  to  turn 
over  the  road  funds  in  the  county  treasury  by  issuing  a  warrant 
on  the  treasurer  for  that  purpose.  To  this  extent  only  should  the 
remedy  by  mandamus  be  applied  in  this  case. 


614  THE  MANDAMUS. 

The  judgment  is  reversed  with  directions  that  the  Circuit  Court 
enter  judgment  in  accordance  with  this  opinion. 

Mandamus  will  not  He  to  compel  the  performance  of  an  unlawful  act. 
People  V.  Assessors,  55  N.  Y.  252,  where  the  court  refused  to  force  as- 
sessors to  verify  an  assessment  in  accordance  with  the  law,  where  such 
action  would  have  resulted  in  the  commission  of  perjury.  Nor  will  it 
lie  to  compel  the  doing  of  an  act  which  has  been  forbidden  by  an  injunc- 
tion issued  by  a  court  of  the  same  state.  Ohio  and  Indiana  R.  R.  Co.  v. 
Commissioners,  7  Ohio  St.  278;  but  the  United  States  courts  do  not  hesi- 
tate to  force  by  mandamus  the  performance  of  an  act  forbidden  by  an 
injunction  issued  by  a  state  court.    Riggs  v.  Johnson  Co.,  6  Wall.  166. 


WAMPLER  V.  STATE  EX  REL.  ALEXANDER. 

Supreme  Court  of  Indiana.     October,  1897. 
148  Ind.  557. 

Jordan,  J.  This  was  a  proceeding  in  the  lower  court  on  the 
part  of  the  relators,  Virgil  H.  Alexander,  and  Alexander  Gable, 
to  obtain  a  writ  of  mandate  against  the  appellant,  a  township  trus- 
tee of  Blackford  county,  Indiana,  to  compel  him  to  meet  with 
them  (who  are  also  township  trustees),  for  the  purpose  of  electing 
a  county  superintendent  of  schools. 

The  theory  of  the  insistence  of  appellant 's  counsel  is :  1st.  That 
relators  herein  are  not  shown  to  have  the  requisite  interest  to  en- 
title them  to  prosecute  this  action.  2d.  That,  under  the  facts, 
mandamus  will  not  lie  to  compel  the  appellant  to  meet  for  the 
purpose  of  electing  a  superintendent  on  a  day  subsequent  to  the 
first  Monday  in  June.  Or,  in  other  words,  that  he  did  not  have 
the  power,  under  the  statute  in  controversy,  of  meeting,  after  the 
time  provided  therein,  for  the  reason,  as  contended,  that  the  law 
is  mandatory  in  this  respect,  and  restrains  him  from  doing  so; 
hence,  on  this  ground,  the  principal  contention  is,  that  he  cannot 
be  mandated  by  the  court  to  exercise  a  power  which  he  did  not 
possess  after  the  first  Monday  in  June,  1897,  and  consequently, 
there  can  be  no  meeting  and  election  by  the  trustees  until  the  next 
biennial  year. 


WAMPLER  V.  STATE  EX  REL.  ALEXANDER.  615 

Section  1182,  Burn's  R.  S.,  1894  (1168  R.  S.  1881),  being  section 
804  of  the  civil  code,  provides:  "Writs  of  mandate  may  be  issued 
to  any  inferior  tribunal,  corporation,  board  or  person,  to  compel 
the  performance  of  an  act  which  the  law  specially  enjoins,  or  a 
duty  resulting  from  an  office,  trust,  or  station."  Under  this  pro- 
vision of  our  code,  the  rule  is  well  affirmed  that  mandamus  is  the 
proper  remedy  to  coerce  an  official  to  discharge  a  public  duty,  and 
any  person  having  an  interest  in  the  matter  involved  may  apply 
for  the  writ.  Hamilton  v.  State,  3  Ind.  452 ;  Holliday  v.  Hender- 
son, 67  Ind.  103. 

Mandamus  is  regarded  as  an  extraordinary  remedy  of  an  equi- 
table nature,  which  will  lie  only  where  the  law  affords  no  other 
adequate  remedy,  and  hence,  without  the  aid  of  the  writ,  there 
would  be  a  failure  of  justice. 

The  statute  in  express  terms  lodges  the  election  of  a  county  su- 
perintendent in  the  township  trustees  of  each  county,  and  imposes 
upon  each  of  them  the  duty  of  meeting  on  the  first  Monday  in 
June,  beginning  in  1873,  and  on  the  same  day  biennially  there- 
after, at  the  place  designated,  and  of  appointing  a  county  super- 
intendent. This  being  a  duty  enjoined  upon  these  officials  by  law, 
therefore,  in  the  event  they  refuse  or  neglect  to  discharge  it,  it  then 
becomes  one  of  the  peculiar  functions  of  a  mandate  to  compel  them 
to  obey  the  law  by  discharging  this  duty,  as  there  are  no  other 
adequate  means  to  meet  and  remedy  the  evils  and  injustice  which 
would  result  by  reason  of  the  failure  or  refusal  of  these  public 
servants  to  respect  and  obey  the  law.  Certainly,  it  cannot  be  suc- 
cessfully controverted  but  what  mandamus  may  be  invoked  to  en- 
force township  trustees,  or  any  one  thereof  to  meet  with  each  other 
at  the  time  and  place  prescribed  by  law  and  proceed  with  the  busi- 
ness of  appointing  a  county  superintendent.  This  being  true,  then 
if  it  can  be  said  that  they  are  not  restrained  or  prohibited  by  the 
statute  in  question  from  meeting  and  performing  this  duty  after 
the  day  prescribed,  but  still  have  the  power  to  subsequently  do  so, 
there  is  no  question  but  what,  in  the  event  of  their  failure  or  re- 
fusal to  meet  for  the  purpose  mentioned,  after  the  lapse  of  the  time 
fixed  by  law,  they  may  also  be  compelled  to  do  so  by  a  writ  of 
mandate,  on  the  application  of  any  person  shown  to  be  invested 
with  the  right  in  the  particular  instance  to  demand  it.  People  v. 
Schiellen,  95  N.  Y.  124. 

Having  reached  this  conclusion,  we  may  proceed  to  determine 
whether,  in  view  of  the  facts  in  this  cause,  and  the  law  applicable 
thereto,  the  appellant  still  had  the  legal  power  to  meet  for  the  pur- 


616  THE  MANDAMUS. 

pose  provided  by  the  statute,  after  the  expiration  of  the  time 
therein  fixed,  and  was  it  his  duty  to  exercise  this  power? 

"While  it  is  true  that  the  statute  in  controversy  does  not  in  ex- 
press terms  provide  for  a  meeting  of  the  trustees  on  a  day  subse- 
quent to  the  one  named,  neither  does  it  expressly  limit  the  power  or 
right  to  meet  on  the  day  prescribed,  and  not  thereafter.  The  duty 
of  the  trustees,  under  the  statute,  to  elect  a  superintendent  bien- 
nially, is  imperative,  and  each  of  them  is  obliged  to  convene  with 
the  others  on  the  first  Monday  in  June  of  the  proper  year  for  that 
purpose.  But  there  are  no  negative  words  in  the  statute,  nor 
any  feature  or  provisions  therein  to  indicate  that  the  legislature, 
under  all  circumstances,  intended  to  limit  their  power  to  meet  for 
the  discharge  of  the  duty  assigned,  to  the  day  appointed,  and 
thereby  restrain  or  prohibit  them  from  effectually  executing  it 
after  the  time  appointed 

Appellant's  presence,  under  the  circumstances,  was  essentially 
necessary,  and,  having  the  legal  ability  to  be  present,  he  refused  to 
yield  his  obedience  to  the  law  and  meet  with  relators,  and  thereby 
assist  to  carry  out  its  object  and  purpose;  and  now,  when  con- 
fronted with  the  strong  arm  of  the  court  compelling  the  perform- 
ance of  a  willfully  omitted  duty,  he  seeks  to  shield  himself  from 
its  performance  under  the  claim,  and  upon  the  ground  asserted, 
that  he  no  longer  possesses  the  power  to  do  so.  This  claim,  as  we 
have  seen,  the  law  does  not  support.  The  authorities  constrain  us 
to  hold  that,  under  the  facts,  the  obligation  to  perform  this  impor- 
tant public  duty  continued  to  rest  on  appellant  after  the  expiration 
of  the  legally  appointed  day,  and  the  law  did  not  deprive  him  of 
the  power  to  perform  it  thereafter,  and  mandamus  is  the  proper 
action  to  remedy  the  wrong  perpetrated  by  him.  In  addition  to 
other  authorities  on  this  point,  see  Smith's  Addison  on  Torts,  p. 
648. 

Where  the  question  involved  in  a  mandamus  proceeding  is  of 
a  public  concern,  as  is  the  one  herein,  and  the  object  of  the  action 
is  to  enforce  the  performance  of  a  public  duty  or  right  in  which 
the  people  in  general  are  interested,  the  applicant  for  the  writ  is 
not  required  to  show  any  legal  or  special  interest  in  the  result 
sought  to  be  obtained.  It  is  only  necessary  that  he  be  a  citizen, 
and,  as  such,  interested  in  common  with  other  citizens  in  the  execu- 
tion of  the  law.  High  on  Extraordinary  Remedies,  section  431; 
Board,  etc.,  v.  State,  86  Ind.  8,  and  cases  there  cited.     It  follows. 


WAMPLER  V.  STATE  EX  REL.  ALEXANDER.  617 

therefore,  that  the  relators  are  shown  to  have  the  requisite  degree 
of  interest  to  enable  them  to  maintain  this  action.  It  is  to  be  re- 
gretted that  appellant,  as  a  public  official,  entrusted,  under  the  law, 
with  a  public  duty,  should  disregard  its  plain  provisions  and  com- 
mands. Such  neglect  or  refusal  to  perform  a  duty  which  he  had 
sworn  to  discharge,  merits  severe  condemnation.  "When  public  of- 
ficers, charged  with  the  execution  of  the  law,  refuse  to  obey  its 
mandates,  or  willfully  ignore  them,  the  evil  results  which  must 
necessarily  follow  from  such  acts,  tend  to  undermine  the  very 
foundation  of  civil  government.  When  such  officers  fail  or  refuse 
to  discharge  their  plain  duties  under  the  law,  not  only  do  they 
violate  their  official  oaths,  but  also  subject  themselves  to  the  penalty 
imposed  by  section  2105,  Burn's  R.  S.  1894  (2018  R.  S.  1881). 

Judgment  affirmed. 

Any  taxpayer  has  sufficient  interest  to  apply  for  mandamus  to  force 
the  performance  of  duties  affecting  the  public.  People  v.  Hulsey,  37  N. 
Y.  346;  State  v.  Common  Council,  33  N.  J.  L..  110;  Ottawa  v.  People,  48  111. 
233;  Union  Pacific  Ry.  Co.  v.  Hall,  91  U.  S.  343.  But  this  is  not  the  rule 
in  Massachusetts,  Wellington  et  al..  Petitioners,  16  Pickering  87,  and  in 
some  other  states.  In  cases  of  merely  private  interest,  private  interest 
peculiar  to  the  applicant  must  be  shown.  People  v.  Walker,  9  Mich  328. 
Officers  of  the  government  are  also  proper  parties  to  mandamus  proceed- 
ings to  compel  the  performance  of  public  duties  by  officers  or  public  cor- 
porations. See  Attorney  Gen.  v.  Com.  Council,  78  Mich.,  545;  Same  v. 
Same,  53  Mich.  213;  Same  v.  Same,  112  Mich.  145;  State  v.  Crawford,  28 
Fla.  441;  Chicago  &c  R.  R.  Co.  v.  Minnesota,  134  U.  S.  418;  People  v. 
N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  104  N.  Y.  58. 


IV.    Demand  and  Refusal. 

STATE  EX  REL.  GRINSFELDER  V.  RAILWAY  CO. 

Supreme  Court  of  Washington.    June,  1898. 
19  Wash.  518. 

Reavis,  J.  Application  by  relator  for  a  writ  of  mundamus  to 
compel  the  defendant,  a  street  railway  company,  to  operate  a  line 
of  street  railway  to  Bell  Park  addition  to  the  city  of  Spokane. 


618  THE  MANDAMUS. 

1.  It  is  urged  by  the  defendant,  appellant  here,  that,  no  demand 
having  been  made  upon  it  to  resume  the  operation  of  its  line,  the 
action  cannot  be  maintained.  It  is  true  that,  upon  the  necessity 
of  a  previous  demand  and  refusal  to  perform  the  act  which  it  is 
sought  to  coerce  by  mandamus  the  authorities  are  not  altogether 
reconcilable.    Mr.  High  says: 

'  *  The  better  doctrine,  however,  seems  to  be  that  which  recognizes 
a  distinction  between  duties  of  a  public  nature,  or  those  which 
affect  the  public  at  large,  and  duties  of  a  merely  private  nature, 
affecting  only  the  rights  of  individuals.  And  while  in  the  latter 
class  of  cases,  where  the  person  aggrieved  claims  the  immediate 
and  personal  benefit  of  the  act  or  duty  whose  performance  is 
sought,  demand  and  refusal  are  held  to  be  necessary  as  a  condition 
precedent  to  relief  by  mandamus,  in  the  former  class,  the  duty  be- 
ing strictly  of  a  public  nature,  not  affecting  individual  interests, 
and  there  being  no  one  specifically  empowered  to  demand  its  per- 
formance, there  is  no  necessity  for  a  literal  demand  and  refusal. 
In  such  cases  the  law  itself  stands  in  lieu  of  a  demand,  and  the 
omission  to  perform  the  required  duty  in  place  of  a  refusal." 
High,  Extraordinary  Legal  Remedies  (2d  ed.),  §  13.  See  also.  Id. 
§41. 

In  Northern  Pacific  B.  B.  Co.  v.  Territory,  3  Wash.  T.  303 
13  Pac.  604,  it  was  said  by  the  court: 

"No  demand  for  the  facilities  required  was  ever  made  upon  the 
company.  That  a  demand  would  be  necessary  as  a  foundation  of 
proceedings  of  this  nature  to  establish  a  mere  private  right,  is  con- 
ceded ;  but  it  is  claimed  by  appellee  that  this  was  a  question  of  pub- 
lic right  and  that  the  company  was  neglecting  to  perform  a  duty 
which  it  owed  to  the  public,  and  that  in  such  a  case  a  demand  was 
not  necessary.  We  think  this  claim  is  established  by  the  facts  and 
law  of  this  case. ' ' 

It  may  be  noted  that  appellant  did  not  deny  that  it  had  dis- 
continued the  operation  of  its  street  railway  line  indefinitely.  The 
rule  which  requires  a  demand  to  be  made  before  application  to  the 
court  for  a  writ  of  mandate  is  founded  upon  reason;  that  is,  it  is 
unjust  that  defendant  should  be  subjected  to  the  payment  of  costs 
for  a  failure  of  some  duty  which  it  was  willing  to  perform,  had  it 
been  requested  to  do  so. 

The  judgment  of  the  superior  court  is  affirmed. 
Anders  and  Dunbar,  JJ.,  concur. 


MURPHY  V.  UTTER.  619 

V.     Effect  of  Change  in  Office. 

MURPHY  V.  UTTER. 

Supreme  Court  of  the  United  States.    October,  1901. 
186  U.  S.  95. 

This  was  an  appeal  by  the  Loan  Commissioners  of  Arizona  from 
a  judgment  of  the  Supreme  Court  of  that  Territory  rendered 
March  22,  1901,  granting  a  peremptory  writ  of  mandamus  and 
commanding  such  Loan  Commissioners,  upon  the  tender  by  plain- 
tiffs of  $150,000  bonds  of  the  county  of  Pima  with  coupons  at- 
tached, described  in  the  petition,  to  issue  and  deliver  to  the  peti- 
tioners refunding  bonds  of  the  Territory  pursuant  to  certain  acts 
of  Congress. 

Mr.  'Justice  Brown  delivered  the  opinion  of  the  court. 

Of  the  numerous  defenses  on  the  merits  set  up  in  the  amended 
return,  but  two  are  pressed  upon  our  attention,  namely,  whether 
the  petition  abated  by  a  change  of  the  personnel  of  the  Loan  Com- 
mission, or  by  a  repeal  of  the  act  abolishing  the  commission  alto- 
gether. 

1,  The  court  was  correct  in  holding  that  the  change  in  the  per- 
sonnel of  the  commission  did  not  abate  the  proceeding,  which 
was  not  taken  against  the  individuals  as  such,  but  in  their  official 
capacity  as  Loan  Commissioners.  The  original  petition  was  en- 
titled and  brought  by  Utter  and  Voorhies,  plaintiffs,  against  "Ben- 
jamin J.  Franklin,  C.  P.  Leitch  and  C.  M.  Bruce,  Loan  Commis- 
sioners of  the  Territory  of  Arizona, ' '  and  the  prayer  was  for  a  writ 
of  mandamus  requiring  the  defendants,  "acting  as  the  Loan  Com- 
missioners of  the  Territory,"  to  issue  the  refunding  bonds. 

The  question  when  a  suit  against  an  individual  in  his  official 
capacity  abates  by  his  retirement  from  office  has  been  discussed 
in  a  number  of  cases  in  this  court,  and  a  distinction  taken  between 
applications  for  mandamus  against  the  head  of  a  department  or 
a  bureau  for  a  personal  delinquency,  and  those  against  a  contin- 
uing municipal  board  in  its  corporate  capacity.  The  earliest  case 
is  that  of  The  Secretary  v.  McGarrahan,  9  Wall.  298,  which  was  a 
writ  of  mandamus  against  Mr.  Browning,  then  Secretary  of  the 
Interior,  in  which  it  appeared  that  Mr.  Browning  had  resigned 
some  months  before  the  decision  of  the  court  was  announced.     It 


620  THE  MANDAMUS. 

was  held  that  the  suit  abated  by  his  resignation,  because  he  no 
longer  possessed  the  power  to  execute  the  commands  of  the  writ, 
and  that  his  successor  could  not  be  adjudged  in  default,  as  the 
judgment  was  rendered  against  him  without  notice  or  opportunity 
to  be  heard.  The  same  question  was  more  fully  considered  in 
United  States  v.  Boutwell,  17  Wall.  604,  in  which  it  was  held  that 
a  mandamus  against  the  Secretary  of  the  Treasury  abated  on  his 
death  or  retirement  from  office,  and  that  his  successor  could  not 
be  brought  in  by  way  of  amendment  or  order  of  substitution. 

It  was  doubtless  to  meet  the  difficulties  occasioned  by  these  de- 
cisions that  Congress  on  February  8,  1899,  passed  an  act,  30  Stat. 
822,  to  prevent  the  abatement  of  such  actions. 

We  have  held,  however,  in  a  number  of  cases,  that  if  the  action 
be  brought  against  a  continuing  municipal  board  it  does  not  abate 
by  a  change  of  personnel.  Thus,  in  Commissioners  v.  Sellew,  99  U. 
S.  624,  which  was  an  application  for  a  m,andamus  against  a  board 
of  county  commissioners  and  its  individual  members  to  compel  them 
to  levy  a  tax  to  pay  a  judgment,  it  was  held  that  the  action  would 
lie,  though  the  terms  of  the  members  had  expired,  and  the  case  of 
Boutwell  was  distinguished  upon  the  ground  that  the  county  com- 
missioners were  "a  corporation  created  and  organized  for  the  ex- 
press purpose  of  performing  the  duty,  among  others,  which  the 
relator  seeks  to  have  enforced.  The  alternative  writ  was  directed 
both  to  the  board  in  its  corporate  capacity  and  to  the  individual 
members  by  name,  but  the  peremptory  writ  was  ordered  against  the 
corporation  alone. ' '  Said  the  Chief  Justice :  *  *  One  of  the  objects 
in  creating  such  corporations,  capable  of  suing  and  being  sued,  and 
having  perpetual  succession,  is  that  the  very  inconvenience  which 
manifests  itself  in  BoutweWs  case  may  be  avoided.  In  this  way 
the  office  can  be  reached  and  the  officer  compelled  to  perform  its 
duties,  no  matter  what  changes  are  made  in  the  agents  by  whom 
the  officer  acts.  The  board  is  in  effect  the  officer,  and  the  members 
of  the  board  are  but  the  agents  to  perform  such  duties.  While  the 
board  is  proceeded  against  in  its  corporate  capacity,  the  individual 
members  are  punished  in  their  natural  capacities  for  failing  to  do 
what  the  law  requires  of  them  as  representatives  of  the  corpora- 
tion." 

This  was  followed  by  Thompson  v.  United  States,  103  U.  S.  480, 
which  was  a  petition  for  a  mandamus  to  compel  the  clerk  of  a  town- 
ship to  certify  a  judgment  obtained  by  the  relator  against  the 
township,  to  the  supervisor,  in  order  that  the  amount  thereof  might 


MURPHY  V.  UTTER.  621 

be  placed  upon  the  tax  roll.  It  was  held  that  the  proceeding  did 
not  abate  by  the  resignation  of  the  clerk  upon  the  appointment  of 
his  successor;  citing  People  v.  Champion,  16  John.  60,  and  People 
V.  Collins,  19  Wend.  56.  See  also  In  re  Hollon  Parker,  131  U.  S. 
221. 

We  think  these  cases  control  the  one  under  consideration  and 
that  they  are  clearly  distinguishable  from  the  others.  The  Loan 
Commission  of  Arizona  was  originally  created  by  an  act  of  the 
territorial  legislature  of  1887,  Laws  of  1887,  chap.  31. 

Congress,  by  an  act  approved  June  25,  1890,  re-enacted  this 
statute  substantially  verbatim,  26  Stat.  175.  As  the  members  of  this 
commission  and  their  successors  in  office  were  constituted  a  Loan 
Commission  for  the  express  purpose  of  liquidating  and  providing 
for  the  payment  of  the  outstanding  indebtedness  of  the  Territory, 
and  subsequently  by  the  act  of  Congress  of  1896,  29  Stat.  262,  of 
its  counties,  municipalities  and  school  districts,  we  think  it  must 
be  treated  as  a  continuing  body,  without  regard  to  its  individual 
membership,  and  that  the  individuals  constituting  the  board  at 
the  time  the  peremptory  writ  was  issued  may  be  compelled  to  obey 
it.  As  we  said,  in  Thompson's  Case,  103  U.  S.  480,  "the  proceed- 
ings may  be  commenced  with  one  set  of  officers  and  terminate  with 
another,  the  latter  being  bound  by  the  judgment." 

It  is  true  the  Loan  Commissioners  were  not  made  a  corporation 
by  the  act  constituting  the  board,  but  they  were  vested  with  power, 
and  were  required  to  perform  a  public  duty;  and,  in  case  of  re- 
fusal, the  performance  of  such  duty  may  be  enforced  by  mandamus, 
under  section  2335  of  the  Revised  Statutes  of  Arizona  of  1887, 
which  provides  that  "the  writ  of  mandamus  may  be  issued  by  the 
Supreme  or  District  Court  to  any  inferior  tribunal,  corporation, 
board  or  person,  to  compel  the  performance  of  an  act  which  the 
law  especially  enjoins. '  *  As,  under  the  act  of  Congress,  as  well  as 
the  territorial  act,  the  board  was  made  a  continuing  body  with 
corporate  succession,  the  fact  that  it  is  not  made  a  corporation  by 
name  is  immaterial. 

Upon  the  whole  case  we  are  of  opinion  that  the  judgment  of  the 
Supreme  Court  of  Arizona,  ordering  a  peremptory  mandamus  to 
issue  to  the  present  Loan  Commissioners,  was  right,  and  it  is  there- 
fore Affirmed. 

Mr.  Justice  Gray  did  not  sit  in  this  case  and  took  no  part  in  its 
decision. 


622  THE  MANDAMUS. 


VI.     C0UBT8  Having  Jubisdictiok. 

AMOS     KENDALL,     POSTMASTER-GENERAL     OF     THE 

UNITED  STATES,  PLAINTIFF  IN  ERROR,  V.  THE 

UNITED  STATES,  ON  THE  RELATION  OF 

WILLIAM  B.  STOKES  ET  AL. 

Supreme  Court  of  the  United  States.    1838. 
12  Peters  524. 

Mr.  Justice  Thompson  delivered  the  opinion  of  the  court. 

This  case  comes  up  on  a  writ  of  error  from  the  circuit  court  of 
the  United  States  for  the  District  of  Columbia,  sitting  for  the 
county  of  Washington. 

The  questions  arising  upon  this  case,  may  be  considered  under 
two  general  inquiries:  \ 

1.  Does  the  record  present  a  proper  case  for  a  mandamus  and 
if  so,  then, 

2.  Had  the  circuit  court  of  this  district  jurisdiction  of  the  case, 
and  authority  to  issue  the  writ  ? 

Under  the  first  head  of  inquiry,  it  has  been  considered  by  the 
counsel  on  the  part  of  the  postmaster-general,  that  this  is  a  pro- 
ceeding against  him  to  enforce  the  performance  of  an  official  duty. 
And  the  proceeding  has  been  treated  as  an  infringement  upon  the 
executive  department  of  the  government,  which  has  led  to  a  very 
extended  range  of  argument  on  the  independence  and  duties  of 
that  department ;  but  which,  according  to  the  view  taken  by  the  court 
of  the  case,  is  entirely  misapplied.  We  do  not  think  the  proceed- 
ings in  this  case  interfere,  in  any  respect  whatever,  with  the  rights 
or  duties  of  the  executive  or  that  it  involves  any  conflict  of  powers 
between  the  executive  and  judicial  departments  of  the  government. 
The  mandamus  does  not  seek  to  direct  or  control  the  postmaster- 
general  in  the  discharge  of  any  official  duty,  partaking  in  any  re- 
spect of  an  executive  character;  but  to  enforce  the  performance  of 
a  mere  ministerial  act,  which  neither  he  nor  the  president  had  any 
authority  to  deny  or  control. 

We  shall  not,  therefore,  enter  into  any  particular  examination 
of  the  line  to  be  drawn  between  the  powers  of  the  executive  and 
judicial  departments  of  the  government.     The  theory  of  the  consti- 


kendaIjL  v.  united  states.  623 

tution  undoubtedly  is,  that  the  great  powers  of  the  government 
are  divided  into  separate  departments;  and  so  far  as  these  powers 
are  derived  from  the  constitution,  the  departments  may  be  re- 
garded as  independent  of  each  other.  But  beyond  that,  all  are  sub- 
ject to  regulations  by  law,  touching  the  discharge  of  the  duties  re- 
quired to  be  performed. 

The  executive  power  is  vested  in  a  president;  and  as  far  as  his 
powers  are  derived  from  the  constitution,  he  is  beyond  the  reach 
of  any  other  department,  except  in  the  mode  prescribed  by  the 
constitution  through  the  impeaching  power.  But  it  by  no  means 
follows,  that  every  officer  in  every  branch  of  that  department  is 
under  the  exclusive  direction  of  the  President.  Such  a  principle, 
we  apprehend,  is  not,  and  certainly  cannot  be  claimed  by  the 
President. 

There  are  certain  political  duties  imposed  upon  many  officers  in 
the  executive  department,  the  discharge  of  which  is  under  the 
direction  of  the  President.  But  it  would  be  an  alarming  doctrine 
that  Congress  cannot  impose  upon  any  executive  officer  any  duty 
they  may  think  proper,  which  is  not  repugnant  to  any  rights  se- 
cured and  protected  by  the  constitution;  and  in  such  cases,  the 
duty  and  responsibility  grow  out  of  and  are  subject  to  the  control 
of  the  law,  and  not  to  the  direction  of  the  President.  And  this  is 
emphatically  the  case,  where  the  duty  enjoined  is  of  a  mere  minis- 
terial character. 

Let  us  proceed,  then,  to  an  examination  of  the  act  required  by  the 
mandamus  to  be  performed  by  the  postmaster-general;  and  his 
obligation  to  perform,  or  his  right  to  resist  the  performance,  must 
depend  upon  the  act  of  Congress  of  the  2d  of  July,  1836.  This 
is  a  special  act  for  the  relief  of  the  relators,  Stockton  &  Stokes ;  and 
was  passed  as  appears  on  its  face,  to  adjust  and  settle  certain  claims 
which  they  had  for  extra  services,  as  contractors  for  carrying  the 
mail.  These  claims  were,  of  course,  on  the  United  States,  through 
the  postmaster-general.  The  real  parties  to  the  dispute  were,  there- 
fore, the  relators  and  the  United  States.  The  United  States  could 
not,  of  course,  be  sued,  or  the  claims  in  any  way  enforced  against 
the  United  States,  without  their  consent  obtained  through  an  act 
of  Congress :  by  which  they  consented  to  submit  these  claims  to  the 
solicitor  of  the  treasury  to  inquire  into  and  determine  the  equity 
of  the  claims,  and  to  make  such  an  allowance  therefor  as  upon  a 
full  examination  of  all  the  evidence,  should  seem  right,  according 
to  the  principles  of  equity.  And  the  act  directs  the  postmaster- 
general  to  credit  the  relators  with  whatever  sum,  if  any,  the  solicitor 


624  THE  MANDAMUS. 

shall  decide  to  be  due  to  them,  for  or  on  account  of  any  such  service 
or  contract. 

The  solicitor  did  examine  and  decide  that  there  was  due  to  the 
relators,  one  hundred  and  sixty-one  thousand  five  hundred  and  six- 
ty-three dollars  and  ninety-three  cents ;  of  this  sum  the  postmaster- 
general  credited  them  with  one  hundred  and  twenty-two  thousand 
one  hundred  and  one  dollars  and  forty-six  cents;  leaving  due  the 
sum  of  thirty-nine  thousand  four  hundred  and  seventy-two  dollars 
and  forty-seven  cents,  which  he  refused  to  carry  to  their  credit. 
And  the  object  of  the  mandamus  was  to  compel  him  to  give  credit 
for  this  balance. 

It  was  urged  at  the  bar,  that  the  postmaster-general  was  alone 
subject  to  the  direction  and  control  of  the  President,  with  respect 
to  the  execution  of  the  duty  imposed  upon  him  by  this  law;  and 
this  right  of  the  President  is  claimed,  as  growing  out  of  the  obliga- 
tion imposed  upon  him  by  the  constitution,  to  take  care  that  the 
laws  be  faithfully  executed.  This  is  a  doctrine  that  cannot  receive 
the  sanction  of  this  court.  It  would  be  vesting  in  the  President 
a  dispensing  power,  which  has  no  countenance  for  its  support  in 
any  part  of  the  constitution ;  and  is  asserting  a  principle,  which, 
if  carried  out  in  its  results,  to  all  cases  falling  within  it,  would  be 
clothing  the  President  with  a  power  to  entirely  control  the  legisla- 
tion of  Congress,  and  paralyze  the  administration  of  justice. 

To  contend  that  the  obligation  imposed  on  the  President  to  see 
the  laws  faithfully  executed,  implies  a  power  to  forbid  their  ex- 
ecution, is  a  novel  construction  of  the  constitution,  and  entirely 
inadmissible.  But  although  the  argument  necessarily  leads  to  such 
a  result,  we  do  not  perceive  from  the  case  that  any  such  power 
has  been  claimed  by  the  President.  But,  on  the  contrary,  it  is  fairly 
to  be  inferred  that  such  power  was  disclaimed. 

The  act  required  by  the  laws  to  be  done  by  the  postmaster-gen- 
eral is  simply  to  credit  the  relators  with  the  full  amount  of  the 
award  of  the  solicitor.  This  is  a  precise,  definite  act,  purely  min- 
isterial; and  about  which  the  postmaster-general  had  no  discre- 
tion whatever. 

There  is  no  room  for  the  exercise  of  any  discretion,  official  or 
otherwise :  all  that  is  shut  out  by  the  direct  and  positive  command 
of  the  law,  and  the  act  required  to  be  done  is,  in  every  just  sense,  a 
mere  ministerial  act. 


KENDALL  V.  UNITED  STATES.  625 

And  in  this  view  of  the  case,  the  question  arises,  is  the  remedy 
by  mandamus  the  fit  and  appropriate  remedy  ? 

The  common  law,  as  it  was  in  force  in  Maryland  when  the  ces- 
sion was  made,  remained  in  force  in  this  district.  We  must,  there- 
fore, consider  this  writ  as  it  was  understood  at  the  common  law 
with  respect  to  its  object  and  purpose,  and  varying  only  in  the  form 
required  by  the  different  character  of  our  government.  It  is  a  writ, 
in  England,  issuing  out  of  the  king's  bench,  in  the  name  of  the  king, 
and  is  called  a  prerogative  writ,  but  considered  a  writ  of  right; 
and  is  directed  to  some  person,  corporation  or  inferior  court,  re- 
quiring them  to  do  some  particular  thing,  therein  specified,  which 
appertains  to  their  office  or  duty,  and  which  is  supposed  to  be  con- 
sonant to  right  and  justice,  and  where  there  is  no  other  adequate 
specific  remedy.  Such  a  writ,  and  for  such  a  purpose,  would  seem 
to  be  peculiarly  appropriate  to  the  present  ease.  The  right  claimed 
is  just  and  established  by  positive  law;  and  the  duty  required  to 
be  performed  is  clear  and  specific,  and  there  is  no  other  adequate 
remedy. 

That  the  proceeding  on  a  mandamus  is  a  case  within  the  meaning 
of  the  act  of  Congress,  has  been  too  often  recognized  in  this  court 
to  require  any  particular  notice.  It  is  an  action  or  suit  brought  in 
a  court  of  justice,  asserting  a  right ;  and  is  prosecuted  according  to 
the  forms  of  judicial  proceedings. 

The  next  inquiry  is  whether  the  court  below  had  jurisdiction  of 
the  case,  and  power  to  issue  the  mandamus? 

This  objection  rests  upon  the  decision  of  this  court,  in  the  cases 
oiM'Intire  v.  Woody  7  Cranch  504;  and  M'Cluny  v.  SilUman,  6 
Wheat.  369.  It  is  admitted  that  those  cases  have  decided  that  the 
circuit  courts  of  the  United  States,  in  the  several  states,  have  not 
authority  to  issue  a  mandamus  against  an  officer  of  the  United 
States.  And  unless  the  circuit  court  in  the  District  of  Columbia 
has  larger  powers  in  this  respect,  it  had  not  authority  to  issue  a 
mandamus  in  the  present  case.  * 

But  let  us  examine  the  act  of  congress  of  the  27th  of  February, 
1801,  concerning  the  District  of  Columbia,  and  by  which  the  cir- 
cuit court  is  organized,  and  its  powers  and  jurisdiction  pointed  out. 

*  See  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  107,  supra,  for  an  instance 
of  the  use  of  a  mandatory  injunction  to  compel  action  by  an  officer  of 
the  United  States  government 
40 


626  THE  MANDAMUS. 

The  first  section  declares  that  the  laws  of  the  state  of  Maryland, 
as  they  now  exist,  shall  be,  and  continue  in  force  in  that  part  of  the 
district  which  was  ceded  by  that  state  to  the  United  States;  which 
is  the  part  lying  on  this  side  of  the  Potomac,  where  the  court  was 
sitting  when  the  mandamus  was  issued.  It  was  admitted  on  the 
argument  that  at  the  date  of  this  act,  the  common  law  of  England 
was  in  force  in  Maryland,  and  of  course  it  remained  and  continued 
in  force  in  this  part  of  the  district;  and  that  the  power  to  issue  a 
mandamus  in  a  proper  case  is  a  branch  of  the  common  law,  cannot 
be  doubted. 

The  theory  of  the  British  government,  and  of  the  common  law  i«, 
that  the  writ  of  mandamus  is  a  prerogative  writ,  and  is  sometimes 
called  one  of  the  flowers  of  the  crown,  and  is  therefore  confided 
only  to  the  king's  bench;  where  the  king,  at  one  period  of  the 
judicial  history  of  that  country,  is  said  to  have  sat  in  person,  and 
is  presumed  still  to  sit.  And  the  power  to  issue  this  writ  is  given 
to  the  king's  bench  only,  as  having  the  general  supervising  power 
over  all  inferior  jurisdictions  and  officers,  and  is  coextensive  with 
judicial  sovereignty.  And  the  same  theory  prevails  in  our  state 
governments,  where  the  common  law  is  adopted,  and  governs  in  the 
administration  of  justice;  and  the  power  of  issuing  this  writ  is 
generally  confided  to  the  highest  court  of  original  jurisdiction. 

There  can  be  no  doubt,  but  that  in  the  state  of  Maryland  a  writ 
of  mandamus  might  be  issued  to  an  executive  officer,  commanding 
him  to  perform  a  ministerial  act  required  of  him  by  law ;  and  if  it 
would  lie  in  that  state,  there  can  be  no  good  reason  why  it  should 
not  lie  in  this  district,  in  analogous  cases. 

Under  the  judiciary  act,  the  power  to  issue  this  writ,  and  the 
purposes  for  which  it  may  be  issued  in  the  courts  of  the  United 
States,  other  than  in  this  district,  is  given  by  the  fourteenth  section 
of  the  act,  under  the  general  delegation  of  power  "to  issue  all 
other  writs  not  specially  provided  for  by  statute,  which  may  be 
necessary  for  the  exercise  of  their  respective  jurisdictions,  and 
agreeable  to  the  principles  and  usages  of  law."  And  it  is  under 
this  power,  that  this  court  issues  the  writ  to  the  circuit  courts,  to 
compel  them  to  porceed  to  a  final  judgment  or  decree  in  a  cause,  in 
order  that  we  may  exercise  the  jurisdiction  of  review  given  by  the 
law;  and  the  same  power  is  exercised  by  the  circuit  courts  over 
the  district  courts,  where  a  writ  of  error  or  appeal  lies  to  the  eir- 


KENDALL  V.  UNITED  STATES.  627 

cuit  court.  But  this  power  is  not  exercised,  as  in  England,  by  the 
king's  bench,  as  having  a  general  supervising  power  over  inferior 
courts;  but  only  for  the  purpose  of  bringing  the  case  to  a  final 
judgment  or  decree,  so  that  it  may  be  reviewed.  The  mandamus 
does  not  direct  the  inferior  court  how  to  proceed,  but  only  that  it 
must  proceed,  according  to  its  own  judgment,  to  a  final  determina- 
tion; otherwise  it  cannot  be  reviewed  in  the  appellate  court.  So 
that  it  is  in  a  special,  modified  manner,  in  which  the  writ  of  man- 
damus is  to  be  used  in  this  court,  and  in  the  circuit  courts  in  the 
states;  and  does  not  stand  on  the  same  footing,  as  in  this  district 
under  the  general  adoption  of  the  laws  of  Maryland,  which  in- 
cluded the  common  law  as  altered  or  modified  on  the  27th  of  Febru- 
ary, 1801. 

The  judgment  of  the  court  below  is  accordingly  affirmed  with 
costs,  and  the  cause  remanded  for  further  proceedings. 


State  Courts  may  not  issue  the  writ  to  oflBcers  of  the  United  States 
government.    McCluny  v.  Sllliman,  6  Wheat  598. 

The  issue  of  mandamus  lies  in  the  discretion  of  the  court,  which  will 
not  issue  it  if  the  relator  has  been  negligent.  People  v.  Common  Coun- 
cil, 78  N,  Y.  56,  nor  to  force  a  technical  compliance  with  the  law  which 
will  be  In  violation  of  its  spirit.     State  v.  Commissioners,  26  Kan.  419. 

The  writ  of  mandamus  has  never  been  issued  to  the  President,  and 
by  the  better  rule  it  will  not  issue  to  the  governor  of  a  state.  State  v. 
Drew,  17  Fla.  67;  People  v.  Morton,  156  N.  Y.  136;  contra,  State  v.  Chase, 
5  Ohio  St.  528;  People  v.  Bissell,  19  111.  229., 

Other  instances  of  the  use  of  the  write 'of  mandamus  treated  in  this 
collection  are:  Lewis  v.  Commissioners,  16  Kan.  102;  Maynard  v.  Board, 
84  Mich.  228;  counting  of  votes:  Stephenson  v.  Boards,  118  Mich.  396; 
placing  of  same  on  official  ballot;  People  v.  Mosher,  163  N.  Y.  32;  to  ap- 
point to  office;  Exparte  Hennen,  13  Peters  230;  to  reinstate  in  office;  Mar- 
bury  V.  Madison,  1  Cranch  (U.  S.)  137;  to  deliver  commission;  State  v. 
Crawford,  28  Fla.  441;  to  countersign  a  commission;  Speed  v.  Detroit,  97 
Mich.  198;  approval  of  official  bond;  Brown  v.  Turner,  70  N.  C.  93,  and 
State  V.  McAllister,  38  W.  Va.  485;  to  force  recognition  as  officer:  Brown 
V.  Russell,  166  Mass.  14;  to  put  on  eligible  list:  People  v.  Weber,  89  111. 
347,  and  Hanna  v.  Loring,  84  Md.  179;  to  obtain  possession  of  parapher- 
nalia of  office;  Atty.  Gen.  v.  Common  Council,  58  Mich.  213;  to  obtain 
consideration  of  nominations  to  office:  Atty.  Gen.  v.  Common  Council,  78 
Mich.  545;  to  secure  provision  for  the  registration  of  voters:  People  v. 
Democratic  Committee,  164  N.  Y.  335;  to  reinstate  in  party  office:  State  v. 
Supervisors,  21  Ohio  282;  Fisk  v.  Jefferson  Police  Jury,  116  U.  S.  131;  Su- 
pervisors V.  United  States,  4  Wall.  435;  the  levy  of  a  tax:  Mullnix  v.  Mu- 
tual Life  Ins.  Co.,  23  Col.  71;  Harvey  v.  Philbrick,  40  N.  J.  L.  374;  People 
V.  Green,  58  N.  Y.  295;  People  v.  Palmer,  52  N.  Y.  83;  to  pay  an  account 


628  THE  MANDAMUS. 

or  warrant:  People  v.  Com.  Council,  112  Mich.  145;  People  v.  Palmer,  154 
N.  Y.  153;  to  hold  an  election:  Illinois  State  Board  of  Dental  Examiners 
V.  People,  123  111.  227,  and  Grider  v.  Tally,  77  Ala.  422;  to  grant  a  license: 
People  V.  N.  Y.,  L.  E.  A  W.  R.  R.  Co.,  104  N.  Y.  58  and  Chicago  Ac  R.  R. 
Co.  V.  Minnesota,  134  U.  S.  418;  obedience  to  administrative  order:  Badger 
V.  United  States,  93  U.  S.  599;  State  v.  Ferguson,  31  N.  J.  L.  107;  to  force 
oflacers  to  act  who  claim  to  have  resigned:  Commonwealth  v.  Walton,  182 
Pa.  St.  373;  Pennie  v.  Reis,  132  U.  S.  464;  In  re  Mahon,  171  N.  Y.  263;  pay- 
ment of  a  pension.  See  also  United  States  v.  Deuell,  172  U.  S.  576;  issue 
of  a  patent:  Fox  v.  McDonald,  101  Ala.  51;  administration  of  official  oath: 
United  States  v.  Black,  128  U.  S.  40;  to  obey  order  of  supervisor:  Blue  v. 
Beach,  155  Ind.  121;  admission  of  child  to  school:  County  Commissioners 
of  Talbot  County  v.  County  Commissioners  of  Queen  Anne's  County,  50 
Md.  245;  levy  of  tax:  Mount  Hope  Cemetery  v.  Boston,  158  Mass.  509; 
transfer  of  property. 

An  Instance  of  the  action  for  the  delivery  of  books  and  papers  which 
resembles  somewhat  a  mandamus  is  In  re  Ouden,  171  N.  Y.  529,  supra. 


CHAPTER  XI. 

THE   PROHIBITION. 

I.    Power  Subject  to  the  Weit. 

THE  PEOPLE  EX  REL.  ONDERDONK  V.  SUPERVISORS. 

Supreme  Court  of  New  York.    January,  1841. 
1  Hill  195. 

H.  M.  Western  moved  for  a  certiorari,  prohibition,  ma/ndamus, 
**or  some  other  writ,  instrument,  process,  order  or  proceedings," 
for  the  relief  of  the  relator  and  other  taxable  inhabitants  of  the 
town  of  North  Hempstead,  Queens  county,  from  the  tax  which  the 
town  collector  was  proceeding  to  collect  by  virtue  of  a  warrant  from 
the  board  of  supervisors  of  the  county. 

Bronson,  J. 

The  only  remaining  branch  of  this  case  is  the  motion  of  the  re- 
lator for  a  writ  of  prohibition  to  the  town  collector  to  stay  the  levy- 
ing of  the  tax.  A  writ  of  prohibition  does  not  lie  to  a  ministerial 
officer  to  stay  the  execution  of  process  in  his  hands.  It  is  directed 
to  a  court  in  which  some  action  or  legal  proceeding  is  pending,  and 
to  the  party  who  prosecutes  the  suit,  and  commands  the  one  not  to 
hold,  and  the  other  not  to  follow  the  plea.  It  stays  both  the  court 
and  the  party  from  proceeding  with  the  suit.  The  writ  was  framed 
for  the  purpose  of  keeping  inferior  courts  within  the  limits  of  their 
own  jurisdiction,  without  encroaching  upon  other  tribunals.  2  Inst. 
601;  Vin.  Ab.  tit.  Prohibition;  and  same  title  in  Com.  Dig.,  Bac. 
Ab.  7th  Lon.  ed.,  and  Tomlin's  Law  Diet.;  3  Bl.  Com.  Ill;  see 
also  Tomlin's  Law  Diet,  tit.  Consultation;  and  F.  N.  B.  116.  Our 
statute  also  shows  that  the  writ  issues  to  a  court  and  prosecuting 
party — ^not  to  a  ministerial  officer.  2  R.  S.  587,  §§  61,  65.  In  the 
People  V.  Works,  7  Wend.  486,  although  the  motion  for  a  prohibi- 
tion seems  to  have  been  granted,  the  remarks  of  the  chief  justice 
are  in  perfect  harmony  with  what  has  been  said  in  this  opinion  in 
relation  to  the  proper  office  of  the  writ ;  and  that  case  must  not  be 
understood  as  having  decided  anything  more  than  that  the  tax  then 

629 


630  THE  PROHIBITION. 

under  consideration  was  illegal.  There  is  not  the  slightest  founda- 
tion in  the  books  for  saying,  that  a  prohibition  may  issue  to  a  min- 
isterial officer  to  stay  the  execution  of  process  in  his  hands. 

If  the  relator  has  suffered,  or  is  in  danger  of  suffering  an  injury, 
he  is  mistaken  in  supposing  that  we  can  grant  the  relief  which  he 

asks. 

Motion  denied. 


SPEED  V.  COMMON  COUNCIL  OF  THE  CITY  OF  DETROIT. 

Supreme  Court  of  Michigan.    January,  1894. 
98  Mich.  360. 

Motion  by  respondents  to  vacate  order  for  writ  of  prohibition 
against  the  procedure  of  the  common  council  in  the  investigation 
of  charges  preferred  by  the  mayor  against  the  city  counselor 
of  Detroit.  Argued  December  12,  1893.  Denied  January  5,  1894. 
The  facts  are  stated  in  the  opinion  and  in  97  Mich.  198. 

Grant,  J. 

The  principal  question  in  this  case  is  the  power  of  the  council 
to  remove  the  city  counselor  for  cause,  but  two  preliminary  matters 
will  be  first  determined. 

1.  It  is  suggested,  rather  than  seriously  insisted,  by  the  learned 
counsel  for  the  respondents,  that  the  writ  of  prohibition  does  not 
lie  in  the  present  case,  for  the  reason  that  the  common  council  was 
proceeding  in  a  political  or  administrative  way,  rather  than  in  any 
other.  They  cite  Mechem  Pub.  Off.  §§  1019,  1020;  High,  Extra. 
Rem.  §§  769,  783 ;  Burch  v.  Hardwicke,  23  Grat.  51 ;  People  v.  Dis- 
trict  Court,  6  Colo.  534;  Smith  v.  Whitney,  116  U.  S.  167.  The  rule 
laid  down  by  these  learned  authors  is  that  the  writ  lies  only  to  pre- 
vent the  unauthorized  exercise  by  courts  and  oflficers  of  judicial 
powers,  and  does  not  lie  to  restrain  executive  or  ministerial  action ; 
and  the  above  authorities,  together  with  others,  are  cited  in  support 
of  the  proposition. 

The  writ  lies  "to  prohibit  the  exercise  by  an  inferior  tribunal  or 
oflficer  of  judicial  powers,  with  which  he  is  not  legally  vested,"  and 
**to  prevent  actions  in  excess  of  jurisdictions  conferred  by  law,  and 
not  to  regulate  or  control  the  manner  in  which  a  lawful  jurisdiction 


SPEED  V.  COMMON  COUNCIL.  631 

shall  be  exercised."  Mechem,  Pub.  Of.  §§  1013,  1014.  Under  the 
constitution  the  legislature  may  provide  for  the  removal  of  munici- 
pal officers.  It  certainly  has  never  been  regarded  in  this  state  that 
the  officer  or  body  upon  whom  this  power  is  conferred  acts  in  a 
purely  political,  administrative,  or  legislative  capacity.  Such  of- 
ficer or  body  acts,  and  must  of  necessity  act,  in  a  quasi  judicial 
capacity,  and  the  method  of  procedure  must  be  of  a  quasi  judicial 
character.  Stockwell  v.  Township  Board,  22  Mich.  341 ;  Dullam  v. 
Wilson,  53  Id.  392 ;  Clay  v.  Stuart,  74  Id.  411 ;  Fuller  v.  Attorney 
General,  98  Id.  96.  Such  officer  or  body  then  becomes  an  inferior 
tribunal,  amenable  to  the  writ  of  prohibition  when  acting  in  excess 
of  the  jurisdiction  conferred.  In  such  cases  it  is  of  little  conse- 
quence what  name  is  given  to  the  power  conferred.  The  name  can- 
not relieve  it  of  its  essential  character.  It  would  be  a  reproach  to 
the  law  if  it  did  not  provide  a  speedy  remedy  by  which  such  tri- 
bunals can  be  prohibited  from  the  exercise  of  an  excess  of  authority, 
or  of  an  authority  which  they  do  not  possess.  We  are  of  the  opinion 
that  the  writ  lies  in  the  present  case.  State  v.  Common  Council, 
(Minn.)  55  N.  W.  118 ;  People  v.  Cooper,  57  How.  Pr.  416 ;  1  Dillon 
Mun.  Corp.  §  191  (4th  ed.  §  253.) 

2.  While  it  appeared,  upon  the  argument,  to  be  conceded  that 
the  sufficiency  of  the  charges  is  not  here  in  issue,  still,  we  deem  it 
proper  to  say  that  the  charges  preferred,  so  far  as  they  relate  to  the 
acts  of  Mr.  Speed  committed  before  his  appointment  to  and  induc- 
tion into  this  office,  are  clearly  beyond  the  jurisdiction  of  the  re- 
spondents to  determine. 

3.  It  was  settled  in  Speed  v.  Common  Council,  supra,  that  the 
mayor  could  not  revoke  the  appointment  when  once  made,  and  that 
neither  he  nor  the  common  council  possessed  the  power  to  remove 
at  will.  That  case  was  ably  argued  and  received  the  most  careful 
examination  by  this  court.  We  see  no  occasion  to  change  our  views, 
or  to  question  the  soundness  of  the  conclusions  then  reached. 

Counsel  for  respondents,  in  their  brief  upon  the  application  for 
a  rehearing  in  that  case,  concede  that  **  there  is  no  provision  what- 
ever for  the  removal  of  an  appointive  officer  upon  charges  nor  for 
the  trial  of  such  charges;"  but  they  contend  (1)  that  the  power  of 
removal  is  necessarily  implied  from  the  language  used  in  the  act 
of  1893;  and  (2)  that  the  power  of  removal  for  cause  is  implied 
from  the  character  and  from  the  nature  of  the  municipal  organiza- 
tion. 


632  THE  PROHIBITION. 

No  support  for  the  positions  of  respondents  can,  we  think,  be 
found  in  the  charter  itself.  The  subject  of  removals  is  completely 
covered  by  its  provisions,  and  it  excludes  removals  in  any  other 
manner  than  is  there  provided.  Elective  officers,  with  few  excep- 
tions, can  be  removed  for  cause.  This,  under  the  well  established 
rule,  excludes  the  power  to  remove  at  will.  Certain  appointive 
officers,  under  the  charter,  can  be  removed  at  will,  without  charges 
or  trial.  Charter,  chap.  4,  §  19.  This  likewise  excludes  the  power 
to  remove  for  cause.  Where  the  power  to  remove  at  will  is  given, 
the  law  does  not  contemplate  that  the  officer  may  be  put  to  the  ex- 
pense of  a  trial  for  cause,  and  have  charges  of  official  misconduct 
placed  before  the  public. 

It  is  also  significant  that  the  act  gives  the  common  council  no 
voice,  either  in  the  appointment  or  confirmation  of  the  city  coun- 
selor. The  absolute  authority  and  the  entire  responsibility  of  his 
appointment,  are  given  to  the  mayor,  without  power  of  removal  at 
will  or  for  cause.  There  is  nothing  in  the  act  which  shows  any  in- 
tention on  the  part  of  the  legislature  to  confer  such  power  upon 
the  common  council;  nor  do  we  think  such  power  is  inherent  in 
the  council,  which  is  the  governing  body  of  the  municipal  corpora- 
tion, and  derives  its  powers  from  express  legislative  enactments. 

The  motion  to  vacate  the  order  must  therefore  be  denied,  with 
costs. 

The  other  justices  concurred. 

Prohibition  will  not  Issue  to  the  governor  of  a  state.    Qrler  v.  Taylor, 
4  McCord  (Tenn.)  206. 


11.     Is  A  Preventive  Remedy. 

UNITED  STATES  V.  HOFFMAN. 

Supreme  Court  of  the  United  States.    December,  1866. 
4  Wall.  158. 

On  a  motion  for  prohibition. 

At  the  last  term  of  this  court  the  relator  made  application  for  a 
writ  of  prohibition  to  the  judge  of  the  District  Court  of  the  North- 
em  District  of  California,  to  prevent  that  court  from  proceeding 
further  in  a  certain  cause  in  admiralty. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 


UNITED  STATES  V.  HOFFMAN.  633 

The  writ  of  prohibition,  as  its  name  imports,  is  one  which  com- 
mands the  person  to  whom  it  is  directed  not  to  do  something  which, 
by  the  suggestion  of  the  relator,  the  court  is  informed  he  is  about  to 
do.  If  the  thing  be  already  done,  it  is  manifest  the  writ  of  pro- 
hibition cannot  undo  it,  for  that  would  require  an  affirmative  act; 
and  the  only  effect  of  a  writ  of  prohibition  is  to  suspend  all  action, 
and  to  prevent  any  further  proceeding  in  the  prohibited  direction. 
In  the  case  before  us,  the  writ,  from  its  very  nature,  could  do  no 
more  than  forbid  the  judge  of  the  District  Court  from  proceeding 
any  further  in  the  case  in  admiralty. 

The  return  shows  that  such  an  order  is  unnecessary,  and  will  be 
wholly  useless,  for  the  case  is  not  now  pending  before  that  court, 
and  there  is  no  reason  to  suppose  that  it  will  be  in  any  manner  re- 
vived or  brought  up  again  for  action.  The  facts  shown  by  the 
return  negative  such  a  presumption. 

The  suggestion  that  there  are  or  may  be  other  cases  against  the 
relator  of  the  same  character  can  have  no  legal  force  in  this  case. 
If  they  are  now  pending,  and  the  relator  will  satisfy  the  court  that 
they  are  proper  eases  for  the  exercise  of  the  court's  authority,  it 
would  probably  issue  writs  instead  of  a  rule,  but  a  writ  in  this  case 
could  not  restrain  the  judge  in  the  other  cases  by  its  own  force,  and 
could  affect  his  action  only  so  far  as  he  might  respect  the  principle 
on  which  the  court  acted  in  this  ease.  "We  are  not  prepared  to  adopt 
the  rule  that  we  will  issue  a  writ  in  a  case  where  its  issue  is  not 
justified,  for  the  sole  purpose  of  establishing  a  principle  to  govern 
other  cases. 

We  have  examined  carefully  all  the  cases  referred  to  by  counsel 
which  show  that  a  prohibition  may  issue  after  sentence  or  judg- 
ment; but  in  all  these  cases  something  remained  which  the  court 
or  party  to  whom  the  writ  was  directed  might  do,  and  probably 
would  have  done,  as  the  collection  of  costs,  or  otherwise  enforcing 
the  sentence. 

Here  the  return  shows  that  nothing  is  left  to  be  done  in  the  case. 
It  is  altogether  gone  out  of  the  court. 

The  rule  heretofore  granted  in  this  case  is  t^  •    7         j 

Discharged. 

The  United  States  Supreme  Court  may  issue  the  writ  only  to  the  dis- 
trict courts  in  admiralty  cases,  ex  parte  Christy,  3  How.  292.  Circuit  courts 
may  issue  it  only  to  aid  an  already  acquired  jurisdiction.  In  re  BInninger, 
7  Blatchford  159.  No  court  with  mere  appellate  jurisdiction  may  issue 
it.    Memphis  v.  Halsey,  12  Heiskell,  210. 


634  THE  PROHIBITION. 

III.    CoBEECTS  Only  Excess  op  Jubisdictiov. 

APPO  V.  THE  PEOPLE. 

Court  of  Appeals  of  New  York.    March,  1860. 
20  N.  Y.  531. 

Selden,  J.  The  first  question  to  be  considered  is,  whether  the 
writ  of  prohibition  was  a  proper  remedy,  assuming  that  the  court 
of  Oyer  and  Terminer  had  no  authority  to  grant  a  new  trial  upon 
the  merits  after  conviction  and  sentence  for  the  crime  of  murder. 

The  office  of  this  writ  is  to  restrain  subordinate  courts  and  in- 
ferior judicial  tribunals  of  every  kind  from  exceeding  their  juris- 
diction. It  is  an  ancient  and  valuable  writ,  and  one  the  use  of 
which  in  all  proper  cases  should  be  upheld  and  encouraged,  as  it 
is  important  to  the  due  and  regular  administration  of  justice  that 
each  tribunal  should  confine  itself  to  the  exercise  of  those  powers 
with  which,  under  the  constitution  and  laws  of  the  state,  it  has  been 
entrusted. 

But  it  is  said,  that  when  an  inferior  court  or  tribunal  has  juris- 
diction of  the  action,  or  of  the  subject  matter  before  it,  any  error 
in  the  exercise  of  that  jurisdiction  can  neither  be  corrected  nor  pre- 
vented by  a  writ  of  prohibition. 

It  is  true  that  the  most  frequent  occasions  for  the  use  of  the  writ 
are  where  a  subordinate  tribunal  assumes  to  entertain  some  cause 
or  proceeding  over  which  it  has  no  control.  But  the  necessity  for 
the  writ  is  the  same  where,  in  a  matter  of  which  such  tribunal  has 
jurisdiction,  it  goes  beyond  its  legitimate  powers ;  and  the  authori- 
ties show  that  the  writ  is  equally  applicable  to  such  a  case.  Mr. 
Jacob,  in  treating  of  this  writ,  after  saying  that  it  may  issue  to 
inferior  courts  of  every  description,  whether  ecclesiastical,  temporal, 
military  or  maritime,  whenever  they  attempt  to  take  cognizance  of 
causes  over  which  they  have  no  jurisdiction,  adds:  "or  if,  in 
handling  of  matters  clearly  within  their  cognizance,  they  transgress 
the  hounds  prescribed  to  them  by  the  laws  of  England,  as  where 
they  require  two  witnesses  to  prove  the  payment  of  a  legacy.**  Jac. 
Law.  Diet.,  title  Prohibition. 

These  cases  prove  that  the  writ  lies  to  prevent  the  exercise  of 
any  unauthorized  power,  in  a  cause  or  proceeding  of  which  the  sub- 
ordinate tribunal  has  jurisdiction,  no  less  than  when  the  entire 


PEOPLE  EX  REL.  ADAMS  V.  WESTBROOK.  635 

cause  is  without  its  jurisdiction.  The  broad  remedial  nature  of  this 
writ  is  shown  by  a  brief  statement  of  a  case  by  Fitzherbert.  In 
stating  the  various  cases  in  which  the  writ  will  lie,  he  says:  "And 
if  a  man  be  sued  in  the  Spiritual  Court,  and  the  judges  there  will 
not  grant  unto  the  defendant  the  copy  of  the  libel,  then  he  shall 
have  a  prohibition  directed  unto  them  for  a  surcease,"  etc.,  until 
they  have  delivered  the  copy  of  the  libel,  according  to  the  statute 
made  Anno  2  H.,  5  (F.  N.  B.,  title  Prohibition.) 

This  shows  that  the  writ  was  never  governed  by  any  narrow  tech- 
nical ruleSj  but  was  resorted  to  as  a  convenient  mode  of  exercising 
a  wholesome  control  over  inferior  tribunals.  The  scope  of  this  rem- 
edy ought  not,  I  think,  to  be  abridged,  as  it  is  far  better  to  prevent 
the  exercise  of  an  unauthorized  power  than  to  be  driven  to  the 
necessity  of  correcting  the  error  after  it  is  committed.  I  have  no 
hesitation,  therefore,  in  holding  that  this  was  a  proper  case  for  the 
use  of  the  writ,  if  the  Supreme  Court  was  right  in  the  conclusion  to 
which  it  arrived  at  general  term. 

The  judgment  should,  I  think,  be  affirmed. 

Prohibition  may  not  be  used  to  correct  mere  errors  of  law  not  involv- 
ing an  excess  of  jurisdiction.  Buskirk  v.  Judge,  7  W.  Va.  91;  Murphy  v. 
Sup.  Court,  58  Cal.  520. 


IV.    Discretion'  of  Court. 

PEOPLE  EX  REL.  ADAMS  V.  WESTBROOK. 

Court  of  Appeals  of  New  York.    May,  1882. 
89  N.  Y.  152. 

Rapallo,  J.  The  relator  has  certain  equitable  claims  against  the 
estate  of  Peter  G.  Fox,  deceased,  upon  which  he  brought  an  action 
against  Fox  in  his  life-time  in  the  Supreme  Court.  A  decision  was 
rendered  in  that  action  in  favor  of  the  relator,  and  judgment  was 
entered  on  such  decision,  but  the  judgment  was  set  aside  on  the 
ground  that  Fox  had  died  before  the  findings  and  the  conclusions 
of  the  trial  judge  were  signed,  and  the  action  was  ordered  to  pro- 
ceed as  if  no  decision  or  findings  had  been  signed.  The  relator, 
therefore,  stands  as  plaintiff  in  an  equitable  action  pending  in  the 
Supreme  Court  against  Peter  G.  Fox,  now  deceased. 


636  THE  PROHIBITION. 

The  surrogate  of  Montgomery  county  has  ordered  the  real  estate 
of  Fox  to  be  sold  for  the  payment  of  his  debts.  The  sale  has  been 
made,  and  the  proceeds  are  in  the  hands  of  the  surrogate  for  distri- 
bution. 

The  surrogate  has  ordered  the  usual  order  requiring  all  persons 
having  claims  or  demands  against  the  estate  of  the  deceased  to  ex- 
hibit and  prove  the  same  before  him,  and  for  distribution  of  the 
fund  among  the  creditors. 

The  relator  filed  with  the  surrogate,  papers  showing  that  he  had 
the  equitable  claim  before  mentioned,  and  that  an  action  therefor 
was  pending  in  the  Supreme  Court,  and  he  insisted  to  the  surrogate, 
and  now  claims,  that  the  surrogate  had  no  jurisdiction  to  compel 
him  to  submit  his  equitable  claims  to  adjudication  in  the  surrogate's 
court,  and  that  they,  being  the  subject  of  an  action  pending  in  the 
Supreme  Court,  could  not  be  withdrawn  from  the  jurisdiction  of 
that  court,  and  that  the  surrogate  should  be  restrained  from  adjudi- 
cating upon  his  claim  and  from  distributing  the  fund,  until  the  re- 
lator's claim  shall  have  been  adjudicated  upon  in  his  action  pending 
in  the  Supreme  Court.  He  also  claims  that  the  proceeds  of  the  sale 
of  the  real  estate  of  Fox  are  impressed  with  a  trust  for  the  pay- 
ment of  the  judgments  before  mentioned,  in  preference  to  the  claims 
of  other  creditors. 

For  the  purpose  of  enforcing  these  positions  he  instituted  the 
present  proceeding.  He  obtained  an  alternative  writ  of  prohibition, 
directed  to  the  surrogate  and  to  the  executor,  prohibiting  them  from 
proceeding  in  the  matter  of  proving,  examining,  deciding  upon  or 
intermeddling  with  the  claims  of  the  relator  so  pending  and  await- 
ing adjudication  in  the  Supreme  Court 

The  alternative  writ  was  granted  upon  affidavits  in  support  of 
the  allegations  of  the  relator,  and  showing  that  the  fund  in  the 
hands  of  the  surrogate  was  insufficient  to  pay  all  the  claims  against 
the  estate,  including  those  of  the  relator.  The  respondents  having 
made  their  return  to  the  alternative  writ,  the  application  for  a 
peremptory  writ  was  heard  at  Special  Term  on  the  alternative  writ 
and  return,  and  an  order  was  made  denying  the  application.  That 
order  was  affirmed  at  General  Term  and  the  relator  appeals  to  this 
court. 

We  do  not  deem  it  proper  to  pass  now  upon  the  claims  to  equit- 
able relief  set  up  by  the  relator  and  argued  in  the  elaborate  points 
which  he  has  submitted,  nor  upon  the  question  of  the  jurisdiction 
of  the  surrogate  in  the  matter,  for  the  reason  that  we  are  of  opinion 
that  the  decision  of  the  Supreme  Court  denying  the  writ  of  prohi- 


PEOPLE  EX  BEL.  ADAMS  V   WESTBBOOK.  637 

bition  is  not  reviewable  in  this  court.  The  writ  of  prohibition  is  an 
extraordinary  remedy,  and  should  be  issued  only  in  eases  of  extreme 
necessity,  and  not  for  grievances  which  may  be  redressed  by  or- 
dinary proceedings  at  law  or  in  equity,  or  by  appeal,  and  it  is  not 
remandable  as  a  matter  of  right  but  of  sound  judicial  discretion,  to 
be  granted  or  withheld,  according  to  the  circumstances  of  each  par- 
ticular case. 

It  being  discretionary  with  the  Supreme  Court  whether  to  grant 
or  deny  the  writ,  its  order  refusing  to  grant  it  is  not  appealable  to 
this  court. 

The  appeal  must  be  dismissed,  with  costs  against  the  relator. 

Appeal  dismissed. 

All  concur,  except  MhjLEB  and  Tracy,  JJ.,  absent. 

A  judgment  awarding  a  prohibition  is,  however^  appealable,  since  it  de< 
prives  the  individual  of  the  right  to  sue.  Appo.  v.  People,  20  N.  Y.  531, 
supra. 


CHAPTER  XII. 

THE   INJUNCTION. 

I.    An  Equitable  not  a  Legal  Remedy. 

DOWS  V.  CITY  OF  CHICAGO. 

Supreme  Court  of  the  United  States.    December,  1870. 
11  Wall.  108. 

Appeals  from  decrees  of  the  Circuit  Court  of  the  United  States 
for  the  Northern  District  of  Illinois  in  two  suits ;  one  original,  the 
other  a  cross  suit. 

A  demurrer  was  interposed  to  the  bills,  original  and  cross.  The 
Circuit  Court  sustained  the  demurrers  to  both,  and  the  complain- 
ants in  the  two  cases  electing  to  abide  by  their  bills,  the  court  en- 
tered decrees  dismissing  the  bills.  From  these  decrees  appeals  were 
taken. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

According  to  the  view  we  take  of  this  case,  it  is  unnecessary  to 
consider  the  force  of  any  of  the  objections  urged  by  the  appellants 
to  the  decrees  rendered.  Assuming  the  tax  to  be  illegal  and  void, 
we  do  not  think  any  ground  is  presented  by  the  bill  justifying  the 
interposition  of  a  court  of  equity  to  enjoin  its  collection.  The 
illegality  of  the  tax  and  the  threatened  sale  of  the  shares  for  its  pay- 
ment constitute  of  themselves  alone  no  ground  for  such  interposi- 
tion. There  must  be  some  special  circumstances  attending  a  threat- 
ened injury  of  this  kind,  distinguishing  it  from  a  common  trespass, 
and  bringing  the  case  under  some  recognized  head  of  equity  juris- 
diction before  the  preventive  remedy  of  injunction  can  be  invoked. 
It  is  upon  taxation  that  the  several  States  chiefly  rely  to  obtain  the 
means  to  carry  on  their  respective  governments,  and  it  is  of  the  ut- 
most importance  to  all  of  them  that  the  modes  adopted  to  enforce 
the  taxes  levied  should  be  interfered  with  as  little  as  possible.  Any 
delay  in  the  proceedings  of  the  officers,  upon  whom  the  duty  is 
devolved  of  collecting  the  taxes,  may  derange  the  operations  of  gov- 
ernment, and  thereby  cause  serious  detriment  to  the  public. 

638 


DOWS  V.  CITY  OF"  CHICAGO.  639 

No  court  of  equity  will,  therefore,  allow  its  injunction  to  issue 
to  restrain  their  action,  except  where  it  may  be  necessary  to  protect 
the  rights  of  the  citizen  whose  property  is  taxed,  and  he  has  no  ade- 
quate remedy  by  the  ordinary  processes  of  the  law.  It  must  appear 
that  the  enforcement  of  the  tax  would  lead  to  a  multiplicity  of  suits, 
or  produce  irreparable  injury,  or  where  the  property  is  real  estate, 
throw  a  cloud  upon  the  title  of  the  complainant,  before  the  aid  of 
a  court  of  equity  can  be  invoked.  In  the  cases  where  equity  has 
interfered,  in  the  absence  of  these  circumstances,  it  will  be  found, 
upon  examination,  that  the  question  of  jurisdiction  was  not  raised, 
or  was  waived. 

Our  attention  has  not  been  called  to  any  well  con- 
sidered case  where  a  court  of  equity  has  interfered  by  injunction 
after  its  jurisdiction  was  questioned,  except  upon  some  one  of  the 
special  circumstances  mentioned. 

The  Supreme  Court  of  Illinois  is  equally  clear  upon  this  ques- 
tion. In  the  case  of  Cook  County  v.  The  Chicago,  Burlington  and 
Quincy  BaUroad  Company  (35  111.  465),  the  subject  was  considered, 
and  the  court  said  that  it  had  been  unable  to  find  any  decision,  in 
its  previous  adjudications,  asserting  a  right  to  bring  a  bill  to  re^ 
strain  the  collection  of  a  tax  illegally  assessed,  without  regard  to 
special  circumstances.  It  concludes  an  examination  of  its  former 
decisions  by  stating,  that  while  it  was  considered  settled  that  a  court 
of  equity  would  never  entertain  a  bill  to  restrain  the  collection  of 
a  tax,  except  in  cases  where  the  tax  was  unauthorized  by  law,  or 
where  it  was  assessed  upon  property  not  subject  to  taxation,  it  had 
never  held  that  jurisdiction  would  be  taken  in  these  excepted  cases 
without  special  circumstances,  showing  that  the  collection  of  taxes 
would  be  likely  to  produce  irreparable  injury,  or  cause  a  multi- 
plicity of  suits. 

Upon  principle  this  must  be  the  case.  The  equitable  powers  of  the 
court  can  only  be  invoked  by  the  presentation  of  a  case  of  equitable 
cognizance.  There  can  be  no  such  case,  at  least  in  the  Federal  courts, 
where  there  is  a  plain  and  adequate  remedy  at  law.  And  except 
where  the  special  circumstances  which  we  have  mentioned  exist,  the 
party  of  whom  an  illegal  tax  is  collected  has  ordinarily  ample  rem- 
edy, either  by  action  against  the  officer  making  the  collection  or 
the  body  to  whom  the  tax  is  paid.  Here  such  remedy  existed.  If 
the  tax  was  illegal,  the  plaintiff  protesting  against  its  enforcement 
might  have  had  his  action,  after  it  was  paid,  against  the  officer  or 


640  THE  INJUNCTION. 

the  city  to  recover  back  the  money,  or  he  might  have  prosecuted 
either  for  his  damages.  No  irreparable  injury  would  have  followed 
to  him  from  its  collection.  Nor  would  he  have  been  compelled  to 
resort  to  a  multiplicity  of  suits  to  determine  his  rights.  His  entire 
claim  might  have  been  embraced  in  a  single  action. 

We  see  no  ground  for  the  interposition  of  a  court  of  equity  which 
would  not  equally  justify  such  interference  in  any  case  of  threat- 
ened invasion  or  real  or  personal  property. 

The  cross-bill  filed  by  the  bank  presents  different  features.  That 
institution  insists  that  if  it  paid  the  tax  levied  upon  the  shares  of 
all  its  numerous  stockholders  out  of  the  dividends  upon  their  shares 
in  its  hands,  which  it  is  required  to  do  by  the  law  of  the  State,  or  if 
the  shares  were  sold,  it  would  be  subjected  to  a  multiplicity  of  suits 
by  the  shareholders,  and  were  it  an  original  bill  the  jurisdiction  of 
the  court  might  be  sustained  on  that  ground.  But  as  a  cross-bill  it 
must  follow  the  fate  of  the  original  bill. 

Decree  affirmed  in  both  suits. 


SAGE  AND  OTHERS,  RESPONDENTS,  V.  THE  TOWN  OF 
FIFIELD  AND  OTHERS,  APPELLANTS. 

Supreme  Court  of  Wisconsin.    Ja/imary,  1887. 
68  Wis.  546. 

Taylor,  J.  The  appellants  insist  that  the  circuit  court  erred  in 
refusing  to  dissolve  the  temporary  injunction — (1)  because  the  com- 
plaint does  not  state  facts  which,  if  admitted  to  be  true,  would 
justify  the  court  in  granting  the  relief  prayed  for  in  the  complaint, 
even  if  it  were  admitted  that  the  electors  of  said  town  had  no  au- 
thority to  vote  a  road  tax  upon  the  taxable  property  of  said  town 
exceeding  the  sum  of  $2,000. 

Under  the  law  requiring  the  highway  taxes  to  be  collected  in 
money  as  other  taxes  are  collected,  it  seems  to  us  very  clear  that 
the  duty  of  the  supervisors  as  to  making  out  warrants  for  the  col- 
lection of  such  taxes  is  clearly  abrogated ;  and  if  any  duty  remains 
on  them  as  a  board  in  fixing  the  amount  of  taxes  to  be  raised  for 
that  purpose  in  the  town,  it  is  simply  their  duty,  in  the  absence  of 
any  vote  of  the  electors  on  the  subject,  to  declare  the  number  of 


SAGE  ET  AL.  V.  TOWN  OP  PIPIELD.  641 

mills  which  shall  be  assessed  on  the  valuation  of  the  property  of  said 
town,  and  then  the  amount  is  to  be  carried  out  by  the  clerk  upon  the 
general  assessment  roll,  and  collected  with  the  other  taxes.  In  the 
case  at  bar  the  electors  have  indicated  that  all  the  highway  taxes  in 
said  town  for  the  year  shall  be  $5,000.  That  sum  the  electors  had 
the  power  to  vote,  with  or  without  the  approval  of  the  board  of 
supervisors,  as  the  law  gives  the  electors  the  right  to  direct  the  su- 
pervisors to  raise  fifteen  mills  on  the  dollar  valuation,  provided  such 
fifteen  mills  does  not  exceed  the  sum  of  $2,000  and  seven  mills  on 
such  valuation.  In  this  case  the  $5,000  does  not  exceed  such  sum ; 
and  if  it  be  technically  necessary  that  the  board  should,  after  the 
vote  of  the  electors,  direct  so  many  mills  on  the  valuation  to  be 
raised  as  would  make  the  sum  of  the  $5,000  voted  by  the  electors, 
they  could  do  that  by  directing  that  amount  to  be  apportioned  upon 
the  assessment  roll ;  and,  according  to  their  answer,  that  was  all  that 
was  intended  to  be  done  in  this  case. 

There  is  no  equity,  therefore,  in  staying  the  officers  of  the  town  in 
collecting  a  tax  which  the  law  clearly  authorizes,  even  though  some 
of  the  formalities  of  the  law  may  not  have  been  complied  with. 


By  the  Court. — The  order  of  the  circuit  court  is  reversed,  and 
the  cause  is  remanded  with  directions  to  that  court  to  dissolve  the 
injunction.  ■ 


II.    Discretionary  Acts. 


WILLIAM  C.  HARRISON  ET  AL.  V.  CITY  OF  NEW  OR^ 

LEANS  ET  AL. 

Supreme  Court  of  Louisiana.    February,  1881. 
33  La.  Ann.  222. 

The  opinion  of  the  court  was  delivered  by 

Todd,  J.  The  plaintiff  sued  out  an  injunction  against  the  mayor 
and  administrators  of  the  city  of  New  Orleans  and  Conunon  Council 
thereof  to  restrain  them  from  passing  or  voting  upon  any  ordinance 
"concerning  the  right  of  way  to  the  New  Orleans  Pacific  Railroad 
Company,  or  any  company,  to  lay  or  erect  tracks  upon  Thalia  street, 
from  Claiborne  street  to  the  levee,  or  authorizing  said  tracks  to  be 
laid  in  said  streets." 
41 


642  THE  INJUNCTION. 

The  defendants  excepted,  on  the  ground  that  the  petition  dis- 
closed no  cause  of  action,  which  exception  was  sustained,  the  suit 
dismissed  and  injunction  dissolved. 

From  this  judgment  the  plaintiffs  have  appealed. 

The  judgment  of  the  court  a  qua  is  correct. 

In  a  recent  case,  decided  by  this  court,  Slaughterhouse  Co.  v. 
Police  Jury  of  Jefferson,  Opinion  Book  53,  folio  546,  we  held  that 
no  injunction  would  lie  to  restrain  a  municipal  corporation  from 
passing  or  voting  on  any  ordinance.  In  fact,  this  principle  is  ele- 
mentary. Municipal  corporations  are  clothed  with  legislative  power, 
to  be  exercised  according  to  their  discretion,  with  reference  to  all 
subjects  pertaining  to  their  administrative  functions.  To  allow 
them  to  be  impeded  or  restrained  in  the  exercise  of  these  powers,  at 
the  will  or  caprice  of  any  one  who  may  believe  that  such  or  such 
act  or  ordinance  might  prove  injurious  to  him,  would  interfere  seri- 
ously with  and  completely  disarrange  the  administration  of  the 
government  of  a  city  or  other  municipal  corporation. 

Besides,  injunctions  are  designed  or  intended  to  prevent  actual 
or  impending  injuries,  and  prohibit  acts  from  which  such  injury, 
loss  or  damage  must  inevitably  result. 

In  this  case  non  constat  that  the  city  will  ever  pass  the  appre- 
hended ordinance.  If  it  is  passed,  non  constat  that  the  railroad 
company,  or  companies,  will  ever  accept  its  terms,  or  exercise  the 
privilege  or  franchise  granted. 

The  mere  voting  on  or  passing  the  ordinance  in  question  cannot 
per  se  do  the  plaintiff  any  possible  injury.  It  will  be  time  enough 
to  complain,  if  it  be  a  subject  for  complaint,  when  steps  are  taken, 
or  a  beginning  made,  to  put  the  ordinance  into  actual  execution. 

The  judgment  appealed  from  is  affirmed  with  costs. 


DAVIS  &  PALMER  V.  MAYOR  OF  THE  CITY  OF  NEW  YORK. 

Superior  Court  of  the  City  of  New  York.    February,  1853. 
1  Duer's  Reports  451. 

BoswoRTH,  J.  The  plaintiffs  move  for  an  attachment  against 
Oscar  W.  Sturtevant,  one  of  the  aldermen  of  the  city,  to  arrest  him 
for  a  contempt  of  court,  in  disobeying  an  injunction  order  made  in 
this  action  by  a  judge  of  this  court,  on  the  27th  of  December,  1852. 


DAVIS  &  PALMER  V.  MAYOR.  643 

The  judge  to  whom  application  was  made  for  the  injunction 
order,  granted  it  on  a  verified  complaint  stating  these  facts  to  be 
true.  Whether  true  or  false  is  a  question  which  we  are  not  called 
upon  to  determine  on  this  proceeding.  To  determine  whether  he 
had  any  jurisdiction  to  make  the  order,  the  complaint  alone  can  be 
looked  at,  and  everything  contained  in  it  and  stated  to  be  true  in 
fact,  must  be  deemed  to  be  true  for  all  the  purposes  of  the  question 
before  us.  It  was  on  the  facts  stated  in  the  complaint,  and  those 
only,  that  the  order  was  made.  If  the  judge,  on  those  facts,  had 
jurisdiction  to  make  the  order,  it  was  the  duty  of  those  to  whom  it 
was  directed  to  obey  it,  until  they  had  procured  it  to  be  vacated. 
If  he  had  jurisdiction  to  make  the  order,  it  is  incontestable  that  it 
was  his  duty  to  make  it,  if  the  facts  stated  in  the  complaint  are  true. 

According  to  the  allegations  in  the  complaint,  the  Common  Coun- 
cil, against  the  objections  of  the  mayor,  were  about  to  grant  to  Jacob 
Sharp  and  others,  authority  and  power  to  construct  and  use  a  rail- 
way in  Broadway,  with  liberty  to  charge  each  passenger  five  cents 
fare,  on  payment  to  the  city  of  a  license  fee  for  each  car  run  of  only 
$20  per  annum,  while  others  stood  ready  to  take  the  grant,  and  con- 
struct such  a  railway,  and  run  cars  with  equal  accommodations,  and 
charge  only  three  cents  fare,  and  pay  a  license  fee  of  $1,000  per 
annum. 

As  between  two  such  propositions,  there  can  be  no  pretence  for 
saying  that  in  the  exercise  of  an  honest  discretion  the  former  might 
be  preferred  to  the  latter.  It  is  not  a  debatable  question  whether  a 
license  fee  of  $1,000  per  car  per  annum  is  more  advantageous  to 
the  city  than  one  of  $20,  nor  whether  the  interests  of  the  community 
will  be  better  subserved  by  each  citizen  being  compelled  to  pay  a  fare 
of  three  cents,  instead  of  five.  Therefore,  even  if  it  can  be  success- 
fully maintained,  that  the  common  council  had  the  power  to  make 
the  grant  which  the  resolutions  purport  to  make,  it  would  be  a  gross 
abuse  of  power,  and  a  flagrant  violation  of  public  duty,  to  make  the 
grant  as  it  was  made,  instead  of  making  it  to  those  who  would  pay, 
at  the  least,  an  additional  million  of  dollars  for  it  into  the  public 
treasury,  and  exact  from  the  passengers  only  three  cents  fare,  in- 
stead of  five.  Is  it  incontestable  that  such  an  abuse  of  power  and 
violation  of  duty  cannot  be  restrained  by  any  court  ? 

The  part  of  the  charter  or  of  any  legislative  act  authorizing  this 
to  be  done  has  not  been  pointed  out.  To  make  such  a  grant  under 
such  circumstances,  even  if  the  power  exists  to  make  any  grant  for 
the  construction  of  a  railway  on  the  ground  of  its  being  "deemed 


644  THE  INJUNCTION. 

good,  useful,  or  necessary  for  the  good  rule  and  government  of  the 
body  corporate,"  or  with  a  view  to  public  convenience,  would  be  a 
clear  abuse  of  power  and  violation  of  duty. 

No  one  can  contend  that  it  would  promote  public  convenience,  or 
tend  to  the  good  rule  and  government  of  the  body  politic,  to  compel 
every  citizen  to  pay  five  cents  fare,  instead  of  three,  or  that  the  pub- 
lic treasury  should  be  permitted  to  receive  only  $20  instead  of 
$1,000  per  annum  for  every  car  run. 

If  such  an  abuse  of  power  and  breach  of  trust  cannot  be 
restrained,  then  the  making  of  the  grant  could  not  have  been  re- 
strained, if  the  purpose  had  existed  and  been  avowed,  to  make  it  for 
the  nominal  consideration  of  one  dollar. 

That  it  may  be  restrained,  is  incontestable,  as  I  think,  both  upon 
principle  and  authority. 

I  am  of  the  opinion  that  no  objection  either  of  form  or  substance, 
has  been  presented  which  can  exonerate  Mr.  Sturtevant  from  the 
consequences  of  a  deliberate  and  marked  disobedience  of  the  order, 
or  which  could  furnish  a  respectable  apology  for  the  court  for  omit- 
ting to  take  such  notice  of  it  as  is  due  to  the  interests  of  the  public, 
and  to  a  proper  administration  of  justice  in  behalf  of  parties  to 
suits,  and  of  the  whole  community. 


BRISTOL  DOOR  &  LUMBER  CO.  V.  CITY  OF  BRISTOL. 

Supreme  Court  of  Appeals  of  Vir^nia.    June,  1899. 
97  Va.  304. 

Harrison,  J.,  delivered  the  opinion  of  the  court. 

At  a  regular  meeting  of  the  council  of  the  city  of  Bristol,  held 
February  4,  1896,  a  resolution  was  adopted  declaring  a  certain 
building  belonging  to  the  appellant,  known  as  "Buffum's  Stalls," 
to  be  a  nuisance  and  the  mayor  of  the  city  directed  to  proceed  to 
have  the  same  abated  as  such. 

On  the  19th  of  March,  1896,  the  mayor  of  the  city  informed  the 
appellant  in  writing  of  the  action  of  the  council  and  notified  it  that, 
unless  the  building  in  question  was  removed  in  thirty  days  from 
March  20th,  1896,  he  would  proceed  to  enforce  the  ordinance  of  the 


BRISTOL  DOOR  AND  LUMBER  CO.  V.  CITY  OP  BRISTOL.  645 

city,  prescribing  a  fine  of  not  less  than  one  dollar,  nor  more  than 
twenty  dollars,  for  each  day  the  building  thereafter  remained,  and 
that,  in  addition  thereto,  he  would  have  the  same  removed  at  the 
expense  of  appellant. 

On  the  20th  day  of  April  1896,  appellant  applied  to  and  obtained 
from  the  judge  of  the  Corporation  Court  of  the  city  of  Bristol  an 
injunction  restraining  the  execution  of  the  resolution  of  the  city 
council,  which  injunction  was  dissolved  by  the  decree  appealed  from 
on  the  5th  day  of  April,  1897,  and  the  bill  dismissed. 

The  bill  states  a  clear  case  for  the  intervention  of  a  court  of 
equity,  and  the  demurrer  thereto  was  properly  overruled. 

The  facts  alleged,  if  true,  show  that  appellant  was  about  to  suffer, 
at  the  hands  of  appellee,  an  irreparable  injury  in  the  destruction 
of  its  property.  In  such  cases  the  law  is  well  settled  that  courts  of 
equity  have  jurisdiction  to  restrain  the  proceedings  of  municipal 
corporations,  where  those  proceedings  encroach  upon  private  rights, 
and  are  productive  of  irreparable  injury. 

The  question  whether  or  not  appellant's  building  is  such  a  nui- 
sance as  called  for  its  destruction,  is  one  of  the  facts  to  be  determined 
by  the  evidence.  As  already  seen  the  case  stated  by  appellee  in  its 
answer,  which  is  all  it  attempts  to  prove,  is  that  disorderly  and  lewd 
persons  are  allowed  to  occupy  the  building;  that  they  are  permitted 
to  become  filthy  and  unsightly  objects,  being  a. constant  source  of 
annoyance  to  all  parties  residing  in  their  vicinity,  and  that  the 
value  of  the  surrounding  property  is  thereby  depreciated. 

Had  these  charges  been  established  the  destruction  of  appellant's 
property  would  not  have  been  justified.  When  a  building  is  a  nui- 
sance only  because  of  the  uses  to  which  it  is  devoted,  the  building 
itself  cannot  be  pulled  down  to  stop  the  nuisance. 

We  have  thus  far  dealt  with  the  ease  of  the  appellee,  as  stated  in 
its  answer.    The  proof  fails  to  sustaiK  the  case  stated 

Without  further  commenting  upon  the  evidence,  it  is  sufficient 
•to  say  that  it  satisfactorily  shows  that  the  building  in  question  has 
been,  in  no  sense,  a  nuisance  since  the  ownership  of  the  appellant. 

For  these  reasons,  the  decree  appealed  from  must  be  reversed,  and 
this  court  will  enter  a  decree  perpetually  enjoining  the  defendants 
in  the  court  below  from  executing  the  resolution  in  question,  of  the 
council  of  the  city  of  Bristol,  directing  the  destruction  of  the  build- 
ing of  appellant  known  as  **Buffum's  Stalls."  Reversed. 


646  THE  INJUNCTION. 

III.    Who  AIay  Apply. 

CRAMPTON  V.  ZABRISKIE. 

Supreme  Court  of  the  United  States.    October,  1879. 
101  U.  8.  601. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

On  the  14th  of  December,  1876,  the  Board  of  Chosen  Free- 
holders of  the  County  of  Hudson,  in  New  Jersey,  passed  a  resolution 
to  purchase  of  the  defendant,  Crampton,  certain  real  property  in 
Jersey  City,  upon  which  to  erect  a  court-house  and  other  buildings 
for  the  county,  at  the  price  of  $2,000  for  every  2,500  square  feet, 
the  price  at  which  he  had  previously  offered  to  sell  the  same,  and 
to  issue  to  him  in  payment  thereof  bonds  of  the  county,  payable  out 
of  the  amount  appropriated  and  limited  for  the  expenses  of  the 
next  fiscal  year,  the  bonds  to  run  for  one  year  and  to  draw  interest 
at  the  rate  of  seven  per  cent  per  annum.  The  bonds  were  to  be 
signed  by  the  director  at  large  and  the  collector  of  the  county,  and 
to  be  issued  under  its  seal.  On  the  18th  of  December,  Crampton 
executed  and  delivered  to  the  board  a  conveyance  of  the  property, 
which  was  accepted  and  recorded  in  the  office  of  the  register  of 
deeds;  and  thereupon  three  bonds  were  executed  and  delivered  to 
him,  two  of  which  were  for  the  sum  of  $75,000  and  one  was  for 
$75,720.  No  provision  was  made  by  the  board  for  the  payment  of 
the  bonds  beyond  the  general  declaration  that  they  should  be  paid 
out  of  the  amount  appropriated  and  limited  for  the  next  fiscal  year. 
By  the  law  then  in  force  the  fiscal  year  commenced  on  the  first  day 
of  December  of  each  year,  and  the  expenditures  of  the  board  were 
restricted  to  the  amount  raised  by  tax  for  that  year,  unless  by  the 
spread  of  an  epidemic  or  a  contagious  disease  a  greater  expenditure 
should  be  required;  and  the  amount  to  be  raised  was  to  be  deter- 
mined at  a  meeting  of  the  board  to  be  held  prior  to  July  15  of  each 
year.  Some  of  the  resident  tax-payers  were  dissatisfied  with  this 
issue  of  bonds  without  making  definite  provision  for  their  payment 
by  taxation  and  accordingly  obtained  from  the  Supreme  Court  of 
the  State  a  writ  of  certiorari  to  review  the  proceedings  of  the  board. 
The  court  adjudged  the  proceedings  invalid,  and  set  the  same  aside. 

It  does  not  appear  that  any  attention  was  paid  either  by  the 
board  or  Crampton  to  this  judgment.  The  board  did  not  reconvey 
or  offer  to  reconvey  the  land  to  Crampton ;  nor  did  the  latter  re- 
turn or  offer  to  return  to  the  board  the  bonds  received  by  him.    But, 


CRAMPTON  V.  ZABRISKIE.  647 

on  the  contrary,  Crampton  commenced  an  action  in  the  Circuit 
Court  of  the  United  States  to  enforce  their  payment.  The  present 
suit,  therefore,  is  brought  by  other  tax-payers  of  the  county  to 
compel  the  board  to  reconvey  the  land  and  Crampton  to  return  the 
bonds,  and  to  enjoin  the  prosecution  of  the  action  to  enforce  their 
payment. 

The  facts  here  stated  are  not  contradicted ;  they  are  substantially 
admitted ;  and  upon  them  the  court  below  very  properly  rendered 
a  decree  for  the  complainants.  Indeed,  upon  the  simple  statement 
of  the  case,  it  would  seem  that  there  ought  to  be  no  question  as  to 
the  invalidity  of  the  proceedings  of  the  board.  The  object  of  the 
statute  of  New  Jersey  defining  and  limiting  its  powers  would  be  de- 
feated if  a  debt  could  be  contracted  without  present  provision  for 
its  payment  in  advance  of  a  tax  levy,  upon  a  simple  declaration  that 
out  of  the  amount  to  be  raised  in  a  future  fiscal  years  it  should  be 
paid.  The  law,  in  terms,  limits  the  expenditures  of  the  board,  with 
a  single  exception,  to  the  amount  to  be  raised  by  taxation  actually 
levied,  not  by  promised  taxation  in  the  future.  And,  as  if  this 
limitation  was  not  sufficient,  it  makes  it  a  misdemeanor  in  any  mem- 
ber of  the  board  to  incur  obligations  in  excess  of  the  amount  thus 
provfded.  It  would  be  difficult  to  express  in  a  more  emphatic  way 
the  will  of  the  legislatui'e  that  the  board  should  not  incur  for  the 
county  any  obligations  beyond  its  income  previously  provided  by 
taxation ;  in  other  words,  that  the  expenses  of  the  county  should  be 
based  upon  and  never  exceed  moneys  in  its  treasury,  or  taxes  al- 
ready levied  and  payable  there. 

Of  the  right  of  resident  tax-payers  to  invoke  the  interposition  of 
a  court  of  equity  to  prevent  an  illegal  disposition  of  the  moneys 
of  the  county  or  the  illegal  creation  of  a  debt  which  they  in  common 
with  other  property-holders  of  the  county  may  otherwise  be  com- 
pelled to  pay,  there  is  at  this  day  no  serious  question.  The  right  has 
been  recognized  by  the  state  courts  in  numerous  cases;  and  from 
the  nature  of  the  powers  exercised  by  municipal  corporations,  the 
great  danger  of  their  abuse  and  the  necessity  of  prompt  action  to 
prevent  irremediable  injuries,  it  would  seem  eminently  proper  for 
courts  of  equity  to  interfere  upon  the  application  of  the  tax-payers 
of  a  county  to  prevent  the  consummation  of  a  wrong,  when  the 
officers  of  those  corporations  assume,  in  excess  of  their  powers,  to 
create  burdens  upon  property-holders.  Certainly,  in  the  absence  of 
legislation  restricting  the  right  to  interfere  in  such  cases  to  public 
officers  of  the  State  or  county,  there  would  seem  to  be  no  substantial 
reason  why  a  bill  by  or  on  behalf  of  individual  tax-payers  should 


648  THE  INJUNCTION. 

not  be  entertained  to  prevent  the  misuse  of  corporate  powers.    The 
courts  may  be  safely  trusted  to  prevent  the  abuse  of  their  process 

in  such  cases 

Decree  affirmed. 

The  Injunction  will  not  be  Issued  to  the  President  Mississippi  v.  John- 
son, 4  Wallace,  475.  Other  cases  In  this  collection  Illustrating  the  use  of 
the  Injunction  against  officers  are  Indianapolis  Brewing  Co.  v.  Claypool, 
149  Ind.  193,  to  prevent  officers  acting  under  an  unconstitutional  law; 
Riogers  v.  Jacobs,  88  Ky.  502;  Rogers  v.  Common  Council,  123  N.  Y.  173; 
Rushville  Gas  Co.  v.  Rushville,  121  Ind.  206,  cases  of  taxpayers'  actions 
to  restrain  unlawful  expenditure  of  money;  Evansville  v.  Miller,  146  Ind. 
613,  and  Stewart  v.  Palmer,  74  N.  Y.  183,  to  restrain  collection  of  an  as- 
sessment; and  Metropolitan  Board  of  Health  v.  Heister,  37  N.  Y.  661  to  re- 
strain enforcement  of  ordinance  declaring  a  nuisance.    All  supra. 

See  also,  Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  107;  American  School 
of  Magnetic  Healing  v.  McAnnulty,  187  U.  S.  94;  Wheeler  v.  Philadelphia, 
77  Pa.  St.  338;  Jacksonville  Electric  Light  Co.  v.  Jacksonville,  36  Fla. 
229;  Sun,  &c.,  Association  v.  The  Mayor,  152  N.  Y.  267. 


CHAPTER  XIIL 

THE  CERTIORARI. 

I.    Character  of  Act  Reviewable. 

DAVIS  V.  COUNTY  COMMISSIONERS. 

Supreme  Judicial  Court  of  Massachusetts.    February,  1891, 
153  Mass.  218. 

Petition,  by  Richard  B.  Davis  and  Theodore  Rust,  for  a  writ  of 
certiorari  to  quash  the  proceedings  of  the  county  commissioners  of 
Hampshire  in  abolishing  the  crossing  at  grade  of  South  street  in  the 
city  of  Northampton  by  the  New  York,  New  Haven  and  Hartford 
Railroad. 

C.  Allen,  'J.  The  New  York,  New  Haven  and  Hartford  Rail- 
road Company,  having  been  allowed  to  take  part  in  the  argument 
in  support  of  the  order  of  the  county  commissioners,  contends  that 
the  petitioners  have  no  such  standing  or  interest  in  the  matter  in 
controversy  as  to  entitle  them  to  be  heard  in  court. 

The  general  doctrine  is  familiar,  that,  ordinarily,  one  cannot 
maintain  a  private  action  for  a  loss  or  damage  which  he  suffers  in 
common  with  the  rest  of  the  community,  even  though  his  loss  may 
be  greater  in  degree. 

Without  dwelling  upon  other  decided  cases  in  Massachusetts,  or 
elsewhere,  we  are  of  opinion  that  the  petitioners  would  not  be  en- 
titled to  recover  damages  for  the  diminished  value  of  their  lands, 
that  being  a  loss  not  peculiar  to  themselves,  but  the  same  in  kind  as 
that  which  is  suffered  by  others  who  owned  lands  situated  upon  the 
same  street,  or  other  streets  contiguous  thereto.  Although  the  doc- 
trine may  sometimes  be  rather  harsh  in  its  application  to  special 
cases,  there  are  sound  reasons  on  which  it  rests.  The  chief  of  these 
reasons  are,  that  to  hold  otherwise  would  be  to  encourage  many 
trivial  suits,  that  it  would  discourage  public  improvements  if  a 
whole  neighborhood  were  to  be  allowed  to  recover  damages  for  such 
injuries  to  their  estates  and  that  the  loss  is  of  a  kind  which  pur- 

649 


650  THE  CEBTIOBABI. 

chasers  of  land  must  be  held  to  have  contemplated  as  liable  to  occur, 
and  to  have  made  allowance  for  in  the  price  which  they  paid. 

If,  then,  the  petitioners  could  not  maintain  a  private  action  for 
damages  to  their  lands,  it  remains  to  be  determined  whether  they 
are  entitled  to  have  a  private  remedy  for  setting  aside  the  proceed- 
ings of  the  county  commissioners  in  making  the  contemplated 
change  in  the  crossing 

In  the  present  case,  inasmuch  as  the  petitioners  are  not  entitled 
to  a  private  remedy  for  damages,  we  think  they  are  not  entitled  to 
maintain  a  petition  for  a  writ  of  certiorari  to  quash  the  proceedings 
of  the  county  commissioners. 

The  result  arrived  at  by  a  majority  of  the  court,  upon  both 
grounds  is  that  the  entry  must  be. 

Petition  dismissed. 

See  also  Oliver  v.  Mayor,  63  N.  J.  L.  634,  and  State  v.  Paterson,  34  N.  J. 
L.  163,  supra,  where  the  writ  was  used  to  review  a  legislative  act. 


PEOPLE  EX  REL.  JOHN  COPCUTT  V.  BOARD  OF  HEALTH 

OF  YONKERS. 

Court  of  Appeals  of  New  York.    November,  1893. 
140  N.  Y.  1. 

This  was  a  proceeding  to  review  by  certiorari  the  proceedings  of 
the  board  of  health  of  the  city  of  Yonkers,  by  which  certain  dams 
upon  the  Nepperham  river  were  determined  to  be  nuisances  and 
ordered  to  be  removed. 

Earl,  J.  The  disposition  of  this  case  turns  largely  upon  the 
effect  and  the  construction  of  the  statutes  constituting  the  boarS 
of  health,  and  defining  its  powers  and  duties,  and  we  will,  therefore, 
first  give  attention  to  the  statutes. 

By  chaper  184  of  the  Laws  of  1881,  an  act  to  revise  the  charter  of 
the  city  of  Yonkers,  it  is  provided  in  title  nine  that  the  mayor,  the 
supervisor,  the  president  of  the  common  council,  the  president  of 
the  board  of  water  commissioners,  and  president  of  the  board  of 
police  and  the  health  oflficer  shall  constitute  the  board  of  health  of 
the  city,  and  the  board  is  given  power,  among  other  things,  "to 


PEOPLE  V.  BOARD  OF  HEALTH.  651 

suppress,  abate  and  remove  any  public  nuisance  detrimental  to  the 
public  health,"  and  in  addition  to  other  remedies  which  it  may  pos- 
sess by  law,  it  is  empowered  to  issue  its  warrant  whenever  necessary 
to  the  sheriff  of  the  county  of  Westchester,  or  to  any  policeman  of 
the  city,  authorizing  and  commanding  him  to  forthwith  suppress, 
abate  and  remove  such  public  nuisance,  at  the  expense  of  the  lot 
whereon  the  nuisance  exists,  and  of  the  owner  thereof,  to  be  en- 
forced and  collected  as  in  the  act  provided.  It  is  further  provided 
that,  in  addition  to  the  powers  expressly  granted  in  the  act,  the 
board  shall  ''have  and  exercise  all  the  powers  now  or  at  any  time 
hereafter  conferred  upon  boards  of  health  in  cities  by  any  general 
law,"  and  it  is  authorized  to  make  ordinances,  rules  and  regula- 
tions to  carry  into  effect  its  powers,  and  to  enforce  observance  of 
them  by  penalties  and  by  action  instituted  in  its  name  to  recover 
penalties  and  to  restrain  and  abate  the  nuisance.  By  chapter  270 
of  the  Laws  of  1885,  the  general  act  for  the  preservation  of  the 
public  health,  it  is  provided  that  the  board  of  health  in  any  city 
of  the  state,  except  the  cities  of  New  York,  Brooklyn  and  Buffalo, 
shall  have  the  power,  and  it  shall  be  its  duty,  "to  receive  and  ex- 
amine into  the  nature  of  complaints  or  causes  of  danger  or  injury 
to  life  and  health  within  the  limits  of  its  jurisdiction ;  to  enter  upon 
or  within  anj'-  place  or  premises  where  nuisances  or  conditions  dan- 
gerous to  life  and  health  are  known  or  believed  to  exist,  and  by 
appointed  members  or  persons  to  inspect  and  examine  the  same,  and 
all  owners,  agents  and  occupants  shall  permit  such  sanitary  ex- 
aminations, £^nd  said  board  of  health  shall  furnish  such  owners, 
agents  or  occupants  a  written  statement  of  results  or  conclusions 
of  such  examinations;  and  every  such  board  of  health  shall  have 
power,  and  it  shall  be  its  duty,  to  order  the  suppression  and  re- 
moval of  nuisances  and  conditions  detrimental  to  life  and  health 
found  to  exist  within  the  limits  of  its  jurisdiction;"  and  "to  make, 
without  the  publication  thereof,  such  orders  and  regulations  in  spe- 
cial and  individual  cases,  not  of  general  application,  as  it  may  see 
fit,  concerning  the  suppression  and  removal  of  nuisances."  It  is 
further  authorized  to  abate  nuisances  ,and  to  impose  penalties  for 
the  violation  of  its  orders  and  regulations,  and  the  violation  of  them 
is  also  made  a  misdemeanor,  and  it  may  commence  actions  to  re- 
strain and  abate  nuisances,  and  to  enforce  its  orders  and  regula- 
tions. 

A  careful  examination  of  the  two  acts  shows  that  there  is  no 
provision  for  a  hearing  before  the  board  on  the  part  of  any  person 
who  is  charged  with   maintaining   a   nuisance  upon  his  premises. 


652  THE  CERTIORARI. 

The  right  to  such  a  hearing  is  not  expressly  given  and  cannot  be 
implied  from  any  language  found  in  either  act  or  from  the  nature 
of  the  subject  dealt  with  in  the  acts.  Boards  of  health  and  other 
like  boards  act  summarily,  and  it  has  not  been  usual  anywhere  to 
require  them  to  give  a  hearing  to  any  person  before  they  can  exer- 
cise their  jurisdiction  for  the  public  welfare.  The  public  health 
might  suffer  or  be  imperiled  if  their  action  could  be  delayed  until 
a  protracted  hearing  could  be  brought  to  a  termination.  There  is 
no  provision  in  the  acts  far  calling  or  swearing  witnesses,  and  there 
is  no  general  law  giving  them  power  to  do  so 

The  question  may  be  asked,  how  can  these  provisions  conferring 
powers  upon  boards  of  health  to  interfere  with  and  destroy  prop- 
erty, and  to  impose  penalties  and  create  crimes,  stand  with  the  con- 
stitution securing  to  every  person  due  process  of  law  before  his 
property  or  personal  rights  or  liberty  can  be  interfered  with  ?  The 
answer  must  be  that  they  could  not  stand  if  we  were  obliged  to  hold 
that  the  acts  referred  to  made  the  determinations  of  the  board  of 
health  as  to  the  existence  of  nuisances  final  and  conclusive  upon  the 
owners  of  the  premises  whereon  they  are  alleged  to  exist.  Before 
such  a  final  and  conclusive  determination  could  be  made,  resulting 
in  the  destruction  of  property,  the  imposition  of  penalties  and  crim- 
inal punishments,  the  party  proceeded  against  must  have  a  hearing, 
not  as  a  matter  of  favor,  but  as  a  matter  of  right,  and  the  right  to 

hearing  must  be  found  in  the  acts.  Stuart  v.  Palmer,  74  N.  Y. 
183. 

As  we  have  said,  there  is  no  provision  of  law  giving  any  party 
a  right  to  a  judicial  hearing  before  these  boards,  and  there  is  no 
provision  making  their  determination  final.  If  the  decisions  of 
these  boards  were  final  and  conclusive,  even  after  a  hearing,  the 
citizen  would  in  many  cases  hold  his  property  subject  to  the  judg- 
\  ment  of  men  holding  ephemeral  positions  in  municipal  bodies  and 
boards  of  health,  frequently  uneducated  and  generally  unfitted  to 
discharge  grave  judicial  functions.  Boards  of  health  under  the 
acts  referred  to  cannot,  as  to  any  existing  state  of  facts,  by  their 
determination  make  that  a  nuisance  which  is  not  in  fact  a  nuisance. 
They  have  no  jurisdiction  to  make  any  order  or  ordinance  abating 
an  alleged  nuisance  unless  there  be  in  fact  a  nuisance.  It  is  the 
actual  existence  of  a  nuisance  that  gives  them  jurisdiction  to  act. 
Their  acts  declaring  nuisances  may  be  presumptively  valid  until 
questioned  or  assailed,  for  the  same  reasons  which  give  presumptive 
legality  to  the  acts  of  official  persons  under  the  maxim  omnia  prae^ 
sumuntur  legitime  facta  donee  probetur  contrarium. 


\: 


PEOPLE  V.  BOARD  OP  HEALTH.  653 

What  operation  then  does  the  order  or  ordinance  of  the  board  of 
health  have  under  these  acts?  The  nuisance  actually  existing  and 
the  jurisdiction  having  been  regularly  exercised,  the  order  or  or-| 
di  nance  has  all  the  operation  and  effect  provided  in  the  act,  and 
the  persons  who  abate  the  nuisance  have  the  protection  which  they 
would  not  have  as  private  persons  abating,  not  a  private  nuisance 
especially  injurious  to  them,  but  a  public  nuisance  injurious  to  the 
general  public. 

It  may  be  said  that  if  the  determination  of  a  board  of  health  as 
to  a  nuisance  be  not  final  and  conclusive,  then  the  members  of  the 
board  and  all  persons  acting  under  their  authority  in  abating  the 
alleged  nuisance,  act  at  their  peril ;  and  so  they  do,  and  no  other ' 
view  of  the  law  would  give  adequate  protection  to  private  rights. 
They  should  not  destroy  property  as  a  nuisance  unless  they  know 
it  to  be  such,  and  if  there  be  doubt  whether  it  be  a  nuisance  or  not 
the  board  should  proceed  by  action  to  restrain  or  abate  the  nuisance, 
and  thus  have  the  protection  of  a  judgment  for  what  it  may  do. 

It  may  be  further  asked,  what,  under  this  view  of  the  law,  is  the 
remedy  of  the  owner  of  the  property  threatened  with  destruction 
or  actually  destroyed  as  a  nuisance?  He  may  have  his  action  in 
equity  to  restrain  the  destruction  of  his  property  if  the  case  be  one 
where  a  court  of  equity  under  equitable  rules  has  jurisdiction,  or  he 
may  bring  a  common-law  action  against  all  the  persons  engaged  in 
the  abatement  of  the  nuisance  to  recover  his  damages,  and  thus  he 
will  have  due  process  of  law ;  and  if  he  can  show  that  the  alleged 
nuisance  does  not  in  fact  exist  he  will  recover  judgment  notwith- 
standing the  ordinance  of  the  board  of  health.  Thus  the  views  we 
take  of  these  acts  and  similar  acts  conferring  powers  upon  local 
officers  to  proceed  summarily  upon  their  own  view  and  examination 
furnish  adequate  protection  to  boards  of  health,  to  the  public  and 
to  the  property  owners;  and  while  these  views  are  not  supported 
by  all  the  decided  cases  upon  the  subject,  they  have  the  support  of 
the  best  reasons  and  of  ample  authority. 

In  Hutton  v.  City  of  Camden,  39  N.  J.  L.  Rep.  122, 

it  was  held  that  the  action  of  the  board  of  health  could  not  deter- 
mine conclusively  that  a  nuisance  exists,  and  that  such  a  conclusive 
determination  could  only  be  made  in  a  regular  course  of  law  before 
an  established  court  of  law  or  equity.  In  Underwood  v.  Green,  42 
N.  Y.  140,  the  action  was  to  recover  the  value  of  dead  hogs  removed 
under  the  direction  of  the  city  sanitary  inspector,  an  officer  clothed 
■with  judicial  discretion,  and  acting  under  a  city  ordinance  declar- 


654  THE  CERTIORARI. 

ing  that  all  dead  animals  "be  forthwith  removed  and  disposed  of 
by  removal  beyond  the  limits  of  the  city  or  otherwise,  so  as  most 
effectually  to  secure  the  public  health ; ' '  and  it  was  held  that  it  must 
be  shown,  in  order  to  justify  the  act,  that  the  dead  hogs  were  or 
would  become  in  some  way  dangerous,  or  deleterious  to  public 
health.  The  following  are  also  instructive  authorities  upon  the 
same  subject:  Mayor,  <&c.,  of  New  York  v.  Board  of  Health,  31 
How.  Pr.  Rep.  385 ;  Clark  v.  Mayor,  etc.,  of  Syracuse,  13  Barb.  32 ; 
Rogers  v.  Barker,  31  id.  447 ;  Coe  v.  Schultz,  47  id.  64 ;  Lawton  v. 
Steele,  119  N.  Y.  226. 

The  result  of  these  authorities  is  that  whoever  abates  an  alleged 
nuisance  and  thus  destroys  or  injures  private  property,  or  inter- 
feres with  private  rights,  whether  he  be  a  judicial  officer  or  private 
»  person,  unless  he  acts  under  the  judgment  or  order  of  a  court  having 
jurisdiction,  does  it  at  his  peril,  and  when  his  act  is  challenged  in 
the  regular  judicial  tribunals  it  must  appear  that  the  thing  abated 
was  in  fact  a  nuisance.  This  rule  has  the  sanction  of  public  policy 
and  is  founded  upon  fundamental  constitutional  principles. 

The  way  is  now  clear  to  the  disposition  of  this  case.  The  board 
of  health  did  act  and  had  a  right  to  act  upon  its  own  inspection  and 
knowledge  of  the  alleged  nuisance.  It  was  not  obliged  to  hear  any 
party.  It  could  obtain  its  information  from  any  source  and  in  any 
way,  and  hence  its  determination  upon  the  question  of  nuisance  is 
not  reviewable  by  certiorari.  People  ex  rel.  v.  McCarthy,  102  N. 
Y.  630. 

Our  conclusion,  therefore,  is  that  the  judgment  of  the  general 
term  should  be  affirmed,  with  costs. 
All  concur. 
Judgment  affirmed. 

The  writ  of  certiorari  will  not  Issue  to  the  governor,  State  v.  Rusk, 
65  Wis.  465;  and  parties  applying  for  it  must  have  special  interest  Peo- 
ple V.  Philllpps.  67  N.  T.  582. 


PEOPLE  V.  POLICE  COMMISSIONERS,  656 

II,    DiscEETioN  OF  Court. 

PEOPLE  EX  EEL.  WALDMAN  V.  POLICE  COMMISSIONERS. 

Court  of  Appeals  of  New  York.    November,  1880. 
82  N.  Y.  506. 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court, 
in  the  first  judicial  department,  affirming  an  order  of  Special  Term 
which  quashed  a  writ  of  certiorari,  on  hearing  upon  a  return  to 
the  writ. 

The  writ  was  obtained  to  review  the  proceedings  of  the  board  of 
police  commissioners  of  the  city  of  New  York,  removing  the  relator 
from  the  position  of  clerk  in  the  police  department. 

The  relator  was  removed  April  1,  1876 ;  he  applied  for  the  writ 
March  1,  1878. 

Danporth,  J.  The  order  made  by  the  Special  Term  was  that 
the  writ  be  quashed,  and  it  was  intimated  upon  the  argument  that 
under  the  practice  of  this  court  in  such  cases  the  appeal  must  be 
dismissed,  but  at  the  request  of  the  appellant's  counsel  the  case 
was  held,  to  enable  him  to  hand  up  points  and  authorities  to  the 
contrary.  We  are  still  of  the  opinion  that  this  trouble  might  have 
been  spared.  It  has  been  frequently  decided  that  the  Supreme 
Court  has  a  discretionary  power  to  grant  or  withhold  a  common- 
law  certiorari.  In  re  Mount  Morris  Square,  2  Hill  28;  People  ex 
rel.  Vanderbilt  v.  Stillwell,  9  N.  Y.  531 ;  People  ex  rel.  Davis  v.  RUl, 
53  Id.  547 ;  People  ex  rel.  Hudson  v.  Board  of  Fire  Commissioners, 
11  Id.  605.  In  these  (and  many  other  cases  to  the  same  effect 
might  be  cited)  it  was  held  that  unreasonable  delay  in  applying  for 
the  writ  might  be  a  ground  for  refusing  it,  and  for  quashing  it  even 
after  a  hearing  on  a  return  thereto.  We  cannot  distinguish  this 
case  from  those  cited. 

The  relator  was  removed  from  office  April  1,  1876.  The  writ  of 
certiorari  was  applied  for  March  1,  1878.  This  delay  might  well 
be  considered  unreasonable,  and  as  amounting  to  acquiescence  in 
the  action  of  the  department.  Such  a  question  was  not  presented 
in  The  People  ex  rel.  The  Citizens'  Gas  Company  v.  The  Board  of 
Assessors,  39  N.  Y.  81;  the  facts  in  that  case  are  palpably  unlike 
those  now  before  us,  and  the  learned  judge  who  there  delivered  the 
opinion  seems  to  have  regarded  it  as  an  exception  to  the  general 
rule.  In  StillwelVs  Case,  19  N.  Y.  531,  a  distinction  is  suggested 
upon  which  an  appeal  might  lie,  but  it  does  not  avail  the  appellant, 


656  THE  CEBTIOBABI. 

for  in  the  ease  before  us  the  Supreme  Court  neither  annulled  nor 
aflSrmed  the  proceedings  complained  of;  nor  does  the  language  of 
the  new  Code,  to  which  we  are  referred  (§  190,  subds.  2  and  3) 
differ  in  meaning  from  that  of  the  old  (§  11),  which  was  in  force 
when  the  cases  above  referred  to  were  decided. 

We  think  the  appeal  should  be  dismissed. 

All  concur. 

Appeal  dismissed. 

The  writ  of  certiorari  will  not  issue  if  there  is  another  adequate  rem- 
edy, even  a  statutory  appeal.  Tucker's  petition,  27  N.  H.  405;  Road  in 
Sellm's  Grove.  2  S.  &  R  419. 


III.    "What  is  Reviewable. 

PEOPLE  EX  REL.  MASTBRSON  V.  FRENCH. 

Court  of  Appeals  of  New  York.    October,  1888. 
110  N.  r.  494. 

RuGER,  Ch.  J.  The  relator  was  tried  before  the  police  commis- 
sioners of  New  York,  upon  an  issue  formed  by  a  plea  of  not  guilty 
to  a  charge  of  conduct  unbecoming  an  officer,  with  a  specification 
alleging  that  during  "his  tour  of  duty  at  4:50  p.  m.,  October  14, 
1887,  he  was  so  much  under  the  influence  of  intoxicating  liquor  as 
to  render  him  unfit  for  duty, ' '  and  was  found  guilty  and  dismissed 
from  the  force. 

Upon  a  removal  of  the  proceedings,  resulting  in  the  relator's  dis- 
missal, to  the  General  Term  by  certiorari,  that  court  reversed  the 
order  of  the  commissioners  and  reinstated  the  relator  in  his  office 
upon  the  ground,  as  stated  in  the  order  of  reversal,  "that  the  facts 
proven  are  insufficient  to  authorize  the  judgment  and  determina- 
tion by  said  commissioners." 

We  are  not  entirely  clear  as  to  what  the  General  Term  means  by 
saying  that  their  reversal  is  made  for  the  reason  that  the  facts 
proven  are  insufficient  to  authorize  the  decision  of  the  commission- 
ers. If  this  language  be  taken  literally  and  held  to  mean  just 
what  it  says,  that  the  charge  proved  did  not  authorize  the  order 
made  by  the  commissioners,  the  decision  was  manifestly  erroneous. 
The  order,  as  thus  construed,  presented  a  question  of  law  simply 


PEOPLE  EX  REL.   MASTEBSON  V.  FRENCH.  657 

as  to  whether  the  board  had  authority,  under  the  rule  applicable  to 
the  subject,  to  dismiss  an  officer  for  the  cause  stated.  Those  rules 
expressly  provide  that  any  member  of  the  police  force  may  be  repri- 
manded, forfeit  his  pay,  or  be  dismissed  from  the  service  for  either 
of  the  following  offenses,  viz. :  Intoxication,  neglect  of  duty,  or 
conduct  unbecoming  an  officer.  The  case  is,  therefore,  brought  di- 
rectly within  the  letter  and  spirit  of  the  rule,  and  fully  justified 
the  order  of  dismissal. 

Under  the  practice  prior  to  the  Code,  the  General  Term  had  power 
to  examine  the  evidence  returned  upon  a  common  law  certiorari, 
only  for  the  purpose  of  seeing  whether  the  subordinate  tribunal 
had  kept  within  its  jurisdiction,  and  that  there  was  evidence  legit- 
imately tending  to  support  its  decision,  and  no  rule  of  law  affecting 
the  right  of  the  relator  had  been  violated.  People  ex  rel.  Murphy 
V.  French,  92  N.  Y.  309 ;  People  ex  rel.  Hart  v.  Bd.  of  Fire  Comrs. 
82  id.  360. 

By  section  2140  of  the  Code  of  Civil  Procedure  their  jurisdic- 
tion was  somewhat  enlarged,  and  they  are  now,  when  there  is  any 
competent  proof  of  the  charges  made,  authorized  to  review  the 
facts  and  determine  whether  there  was  *  *  upon  all  the  evidence,  such 
a  preponderance  of  proof  against  the  existence  of  any  of  those  facts, 
that  the  verdict  of  a  jury  affirming  the  existence  thereof,  rendered 
in  an  action  in  the  Supreme  Court,  triable  by  jury,  would  be  set 
aside  by  the  court  as  against  the  weight  of  evidence."  It  is  quite 
impossible,  we  think,  to  bring  this  case  within  the  class  authorized 
to  be  reviewed  by  the  General  Term  upon  the  facts.  The  fact  in 
controversy  under  the  issue  made  was  whether,  upon  the  occasion  in 
question,  the  relator  was  rendered  unfit  for  duty  by  reason  of  his 
intoxication. 

The  proof  on  this  question  was  clear  and  positive,  and  practically 
undisputed  on  the  trial There  was  here  no  such  con- 
flict of  evidence,  much  less  such  a  preponderance  of  proof,  as  au- 
thorized a  reversal  by  the  General  Term  of  the  determination  of  the 
commissioners  within  the  rule  prescribed  by  the  Code.  Conceding 
the  existence  of  an  ailment  on  the  part  of  the  relator,  as  claimed 
by  him,  it  affords  no  justification  of  his  conduct.  Neither  does  it 
produce  conflict  of  evidence  upon  the  issue  tried,  but  operated,  at 
the  most,  as  a  palliation  of  his  offense  entitling  him,  perhaps,  to 
the  favorable  consideration  of  his  judges  in  determining  the  degree 
of  his  punishment. 

If,  however,  we  should  give  a  strained  construction  to  the  lan- 
guage of  the  General  Term,  and  hold  that  they  thereby  intended  to 
42 


658  THE  CERTIOBABI. 

pass  upon  the  adequacy  of  the  excuse  offered  by  the  relator,  and 
determined  that  it  was  sufiScient  to  purge  the  offense,  we  still  think 
they  exceeded  the  authority  for  review  conferred  upon  them  by 
the  Code.  Upon  the  view  we  take  of  the  case,  it  stands  as  though 
the  relator  had  pleaded  guilty  to  the  charge  and  alleged  the  exten- 
uating circumstances  in  mitigation  of  the  punishment  which  he  had 
incurred  by  reason  of  his  offense.  This  would  present  a  question 
pertaining  solely  to  the  general  government  and  discipline  of  the 
force,  and  must,  from  the  nature  of  things,  rest  wholly  in  the  dis- 
cretion of  the  commissioners.  Such  a  question  we  do  not  think 
reviewable  in  an  appellate  court.  When  a  dereliction  of  duty  on 
the  part  of  an  officer  has  been  proved,  the  sufficiency  of  an  excuse 
therefor,  presents  no  question  of  law  or  fact  for  the  courts,  but  is 
addressed  solely  to  the  judgment  and  discretion  of  those  who  are 
primarily  charged  with  the  duty  of  maintaining  the  discipline  and 
efficiency  of  the  force. 

The  government  of  a  police  force  assimilates  to  that  required  in 
the  control  of  a  military  body,  and  the  interference  of  an  extraneous 
power  in  its  practical  control  and  direction,  must  always  be  mis- 
chievous and  destructive  of  the  discipline  and  habits  of  obedience, 
which  should  govern  its  subordinate  members.  If  its  determinations 
upon  all  questions  are  subject  to  review,  and  appeals  to  some  tri- 
bunal outside  the  force  may  be  taken  without  restraint,  it  must 
necessarily  lead  to  a  want  of  respect  towards  their  official  superiors, 
and  an  impairment  of  the  habits  of  obedience  and  discipline  which 
are  so  essential  to  the  efficiency  and  good  conduct  of  a  well  regu- 
lated police  force. 

We  are,  therefore,  of  the  opinion  that  this  question  was  exclu- 
sively for  the  consideration  of  the  commissioners,  and  that  the  ap- 
pellate court  had  no  authority  to  review  the  exercise  of  their  dis- 
cretion on  the  subject.  People  ex  rel.  Hart  v.  Brd.  of  Fire  Comrs., 
supra. 

The  order  of  the  General  Term  should  be  reversed  and  that  of 
the  commissioners  affirmed,  with  costs  against  the  relator  in  both 
courts. 

All  concur. 

Ordered  accordingly. 


EX  PARTE  VALLANDIdHAM.  659 

rV.    Courts  Having  Jurisdiction. 

EX  PARTE  VALLANDIGHAM. 

Supreme  Court  of  the  United  States.    December,  1863, 
1  Wall.  243. 

This  case  arose  on  the  petition  of  Clement  L,  Vallandigham  for 
a  certiorari,  to  be  directed  to  the  Judge  Advocate  General  of  the 
Army  of  the  United  States,  to  send  up  to  this  court,  for  its  review, 
the  proceedings  of  a  military  commission,  by  which  the  said  Val- 
landigham had  been  tried  and  sentenced  to  imprisonment : 

Mr.  Justice  Wayne,  ....  delivered  the  opinion  of  the 
court : 

•  •  ••••••«• 

Our  first  remark  upon  the  motion  for  a  certiorari  is,  that  there 
is  no  analogy  between  the  power  given  by  the  Constitution  and 
law  of  the  United  States  to  the  Supreme  Court,  and  the  other  in- 
ferior courts  of  the  United  States,  and  to  the  judges  of  them,  to 
issue  such  processes,  and  the  prerogative  power  by  which  it  is  done 
in  England.  The  purposes  for  which  the  writ  is  issued  are  alike, 
but  there  is  no  similitude  in  the  origin  of  the  power  to  do  it.  In 
England  the  court  of  King's  Bench  has  a  superintendence  over  all 
courts  of  an  inferior  criminal  jurisdiction,  and  may,  by  the  plenti- 
tude  of  its  power,  award  a  certiorari  to  have  any  indictment  re- 
moved and  brought  before  it;  and  where  such  certiorari  is  allow- 
able, it  is  awarded  at  the  instance  of  the  king,  because  every  indict- 
ment is  at  the  suit  of  the  king^  and  he  has  a  prerogative  of  suing 
in  whatever  court  he  pleases.  The  courts  of  the  United  States  de- 
rive authority  to  issue  such  a  writ  from  the  Constitution  and  the 
legislation  of  Congress.  To  place  the  two  sources  of  the  right  to 
issue  the  writ  in  obvious  contrast,  and  in  application  to  the  motion 
we  are  considering  for  its  exercise  in  this  court,  we  will  cite  so 
much  of  the  third  article  of  the  Constitution  as  we  think  will  best 
illustrate  the  subject. 

**The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  such  inferior  courts  as  the  Congress  may,  from 
time  to  time,  ordain  and  establish."  "The  judicial  power  shall 
extend  to  all  cases  in  law  and  equity,  arising  under  the  Constitu- 
tion and  laws  of  the  United  States,  and  treaties  made  or  which 
shall  be  made  under  their  authority ;  to  all  cases  affecting  ambassa- 


660  THE  CERTIORARI. 

dors,  other  public  ministers  and  consuls,"  &c.,  &c.,  and  "in  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls,  and  those 
in  which  a  state  shall  be  a  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to  law 
and  fact,  with  such  exceptions  and  under  such  regulations  as  the 
Congress  shall  make."  Then  Congress  passed  the  act  to  establish 
the  judicial  courts  of  the  United  States  (1  Stat,  at  Large,  73,  chap. 
20),  and  in  the  13th  section  of  it  declared  that  the  Supreme  Court 
shall  have  .exclusively  all  such  jurisdiction  of  suits  or  proceedings 
against  ambassadors  or  other  public  ministers  or  their  domestics 
or  other  domestic  servants  as  a  court  of  law  can  have  or  exercise 
consistently  with  the  laws  of  nations,  and  original,  but  not  ex- 
clusive jurisdiction,  of  suits  brought  by  ambassadors,  or  other  pub- 
lic ministers,  or  in  which  a  consul  or  vice-consul  shall  be  a  party. 
In  the  same  section,  the  Supreme  Court  is  declared  to  have  appel- 
late jurisdiction  in  cases  hereinafter  expressly  provided.  In  this 
section,  it  will  be  perceived  that  the  jurisdiction  given,  besides 
that  which  is  mentioned  in  the  preceding  part  of  the  section,  is  an 
exclusive  jurisdiction  of  suits  or  proceedings  against  ambassadors 
or  other  public  ministers  or  their  domestics  or  domestic  servants, 
as  a  court  of  law  can  have  or  exercise  consistently  with  the  laws 
of  nations,  and  original  but  not  exclusive  jurisdiction  of  all  suits 
brought  by  ambassadors  or  other  public  ministers,  or  in  which  a 
consul  or  vice-consul  shall  be  a  party,  thus  guarding  them  from  all 
other  judicial  interference,  and  giving  to  them  the  right  to  prose- 
cute for  their  own  benefit  in  the  courts  of  the  United  States.  Thus 
substantially  reaffirming  the  constitutional  declaration,  that  the 
Supreme  Court  had  original  jurisdiction  in  all  cases  affecting  am- 
bassadors and  other  public  ministers  and  consuls,  and  those  in 
which  a  state  shall  be  a  party,  and  that  it  shall  have  appellate 
jurisdiction  in  all  other  cases  before  mentioned,  both  as  to  law  and 
fact,  with  such  exceptions  and  under  such  regulations  as  the  Con- 
gress shall  make. 

The  appellate  powers  of  the  Supreme  Court,  as  granted  by  the 
Constitution,  are  limited  and  regulated  by  the  acts  of  Congress, 
and  must  be  exercised  subject  to  the  exceptions  and  regulations 
made  by  Congress.  Durousseau  v.  The  United  States,  6  Cranch 
314 ;  Barry  v.  Mercein,  5  How.  119 ;  United  States  v.  Curry,  6  id. 
113 ;  Forsyth  v.  United  States,  9  id.  571.  In  other  words,  the  peti- 
tion before  us  we  think  not  to  be  within  the  letter  or  spirit  of  the 
grants  of  appellate  jurisdiction  to  the  Supreme  Court.    It  is  not 


EX  PARTE  VALLANDIGHAM.  661 

in  law  or  equity  within  the  meaning  of  those  terms  as  used  in  the 
3d  article  of  the  Constitution.  Nor  is  a  military  commission  a 
court  within  the  meaning  of  the  14th  section  of  the  judiciary  act  of 
1789.  That  act  is  denominated  to  be  one  to  establish  the  judicial 
courts  of  the  United  States,  and  the  14th  section  declares  that  all 
the  "before-mentioned  courts"  of  the  United  States  shall  have 
power  to  issue  writs  of  scire  facias,  habeas  corpus,  and  all  other 
writs  not  specially  provided  for  by  statute,  which  may  be  necessary 
for  the  exercise  of  their  respective  jurisdictions,  agreeably  to  the 
principles  and  usages  of  law.  The  words  in  the  section,  ''the  be- 
fore-mentioned" courts,  can  only  have  reference  to  such  courts  as 
were  established  in  the  preceding  part  of  the  act,  and  excludes 
the  idea  that  a  court  of  military  commission  can  be  one  of  them. 

Whatever  may  be  the  force  of  Vallandigham 's  protest,  that  he 
was  not  triable  by  a  court  of  military  commission,  it  is  certain  that 
his  petition  cannot  be  brought  within  the  14th  section  of  the  act; 
and  further,  that  the  court  cannot,  without  disregarding  its  frequent 
decisions  and  interpretation  of  the  Constitution  in  respect  to  its 
judicial  power,  originate  a  writ  of  certiorari  to  review  or  pro- 
nounce any  opinion  upon  the  proceedings  of  a  military  commission. 
It  was  natural,  before  the  sections  of  the  3d  article  of  the  Constitu- 
tion had  been  fully  considered  in  connection  with  the  legislation 
of  Congress,  giving  to  the  courts  of  the  United  States  power  to  issue 
writs  of  scire  facias,  habeas  corpus,  and  all  other  writs  not  specially 
provided  for  by  statute,  which  might  be  necessary  for  the  exercise 
of  their  respective  jurisdiction,  that  by  some  members  of  the  pro- 
fession it  should  have  been  thought,  and  some  of  the  early  judges 
of  the  Supreme  Court  also,  that  the  14th  section  of  the  act  of  24th 
September,  1789,  gave  to  this  court  a  right  to  originate  processes 
of  habeas  corpus  ad  subjiciendum,  writs  of  certiorari  to  review  the 
proceedings  of  the  inferior  courts  as  a  matter  of  original  jurisdic- 
tion, without  being  in  any  way  restricted  by  the  constitutional  lim- 
itation, that  in  all  eases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  those  in  which  a  State  shall  be  a  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  This  limitation 
has  always  been  considered  restrictive  of  any  other  original  juris- 
diction. The  rule  of  construction  of  the  Constitution  being  that  af- 
firmative words  in  the  Constitution,  declaring  in  what  cases  the 
Supreme  Court  shall  have  original  jurisdiction,  must  be  construed 
negatively  as  to  all  other  cases.  Marbury  v.  Madison,  1  Cranch 
137 ;  State  of  New  Jersey  v.  State  of  New  York,  5  Peters  284 ;  Ken- 
dall V.  The  United  States,  12  id.  637 ;  Cohens  v.  Virginia,  6  Wheaton 


^ 


662  THE  CEBTIOBABI. 

264.  The  nature  and  extent  of  the  court's  appellate  jurisdiction 
and  its  want  of  it  to  issue  writs  of  habeas  corpus  ad  subjiciendum 
have  been  fully  discussed  by  this  court  at  different  times.  We  do 
not  think  it  necessary,  however,  to  examine  or  cite  many  of  them  at 
this  time. 

For  the  reasons  given,  our  judgment  is,  that  the  writ  of  certiorari 
prayed  for  to  revise  and  review  the  proceedings  of  the  military 
commission,  by  which  Clement  L,  VaUandigham  was  tried,  sen- 
tenced and  imprisoned,  must  be  denied,  and  so  do  we  order  accord- 
ingly. 

Certiorari  refused. 

Nelson,  J.,  Grier,  J.,  and  Field,  J.,  concurred  in  the  result  of 
this  opinion.  Miller,  J.,  was  not  present  at  the  argument  and  took 
no  part. 


CHAPTER  XIV. 

QUO   WARRANTO. 

PEOPLE  EX  EEL.  BAETON  V.  LONDONER. 

Supreme  Court  of  Colorado.    September,  1889. 
13  Colo.  303. 

Chief  Justice  Helm  delivered  the  opinion  of  the  court. 

1.  It  is  asserted  by  respondent  that  the  district  court  had  no 
jurisdiction  to  entertain  the  present  proceeding,  and  that  court 
itself  so  declared  when  discussing  the  petition.  The  assertion  and 
judgment  are  based  upon  the  following  statute,  and  certain  consti- 
tutional provisions  hereinafter  considered:  **If  the  election  of  a 
mayor  ....  shall  be  contested,  the  contest  shall  be  heard 
and  determined  by  the  board  of  supervisors,  under  rules  which 
said  board  shall  establish  for  such  hearing."  Denver  City  Char- 
ter, art.  4,  §  9. 

Does  the  language  employed  in  the  statute  above  quoted  operate 
to  deprive  the  courts  of  jurisdiction  in  the  premises  by  quo  war- 
ranto? 

Quo  warranto  is  one  of  the  most  ancient  and  important  writs 
known  to  the  common  law ;  the  modern  proceeding  by  information, 
which  has  almost  entirely  superseded  the  ancient  writ,  being  itself 
nearly  two  hundred  years  old.  This  jurisdiction  is  expressly  given 
to  the  supreme  court  by  our  constitution.  It  is  also,  beyond  doubt, 
included  in  the  powers  conferred  by  that  instrument  upon  the  dis- 
trict courts,  where,  however,  its  exercise  may  be  as  regulated  by 
statute.  It  receives  express  legislative  recognition;  its  ancient  use 
and  efficacy  being  by  statute  united  with  its  modem,  enlarged  scope. 
And  while  a  few  cases  hold  the  contrary,  the  great  weight  of  au- 
thority, as  well  as  the  better  reason,  supports  the  proposition  that, 
unless  the  legislative  intent  to  take  away  the  jurisdiction  is  ex- 
pressed so  clearly  as  to  be  practically  beyond  a  reasonable  doubt, 
it  will  be  regarded  as  undisturbed.  Such  intent  does  not  thus  ap- 
pear in  the  statute  before  us.  The  board  of  supervisors  is  not  made 
the  "sole"  or  "exclusive"  tribunal  to  try  the  contest  for  mayor,  nor 

663 


664  QUO  WARRANTO. 

are  any  words  employed  expressly  eliminating  the  judicial  juris- 
diction in  question.  Provisions  substantially  similar  to  the  one 
before  us  have  been  held  to  create  a  cumulative  remedy  merely, 
and  not  to  inhibit  proceedings  by  quo  warranto 

The  fact  that  the  jurisdiction  of  State  legislative  bodies  in  elec- 
tion contests  affecting  their  own  members  has  universally  been  held 
exclusive  does  not  render  such  jurisdiction  when  lodged  in  a  munic- 
ipal corporation  also  exclusive.  The  reasoning  in  those  cases  which 
rely  upon  the  supposed  analogy  between  the  legislature  and  coun- 
cil has  been  shown  fallacious 

So  far  as  this  branch  of  the  discussion  is  concerned,  which  is 
confined  to  the  language  of  the  provision  cited,  we  must  hold  the 
statutory  remedy  under  consideration  concurrent  with  the  pre- 
scribed code  proceeding  by  information  in  the  nature  of  quo  war- 
ranto. 

Because  the  constitution,  in  section  12,  article  7,  directs  specific 
legislation  for  the  trial  of  "election  contests,"  it  does  not  neces- 
sarily follow  that  the  people,  in  their  sovereign  capacity,  are  there- 
by precluded  from  inquiring  by  information  in  the  nature  of  quo 
warranto  into  usurpations  of  office.  The  framers  of  that  instru- 
ment were,  in  this  provision,  dealing  with  the  subject  of  election 
contests  a,s  such.  They  did  not  intend  to  revoke  the  jurisdiction 
by  quo  warranto  so  carefully  given  by  them  elsewhere  to  this  and 
other  courts  (Const,  art.  6,  §§  3,  11), — a  jurisdiction  which,  though 
recognized  at  the  common  law,  had  also  been,  and  then  was,  spe- 
cially lodged  in  the  territorial  courts  by  existing  statute. 

"Election  contests"  and  quo  warranto  proceedings  differ  mate- 
rially in  the  primary  and  principal  objects  for  which  they  are 
brought,  as  well  as  in  their  procedure.  "Election  contests,"  pure- 
ly, are  usually  instituted  within  a  prescribed  period  after  the  elec- 
tion, by  or  on  behalf  of  the  unsuccessful  candidate,  for  the  pur- 
pose of  establishing  his  right  to  the  particular  office  in  contro- 
versy. And  though  our  statutes  permit  any  elector,  upon  giving 
security  for  costs,  to  challenge  in  this  way  the  right  to  occupy  cer- 
tain county  officers,  yet  neither  in  this  nor  in  any  other  contesting 
provision  of  which  we  are  aware,  is  authority  given  any  public  of- 
ficer or  private  individual  to  institute  a  proceeding,  in  the  name 
of  the  state,  having  for  its  distinctive  purpose  the  protection  of 
the  public.  Quo  warranto  proceedings,  on  the  contrary,  deal 
mainly  with  the  right  of  the  incumbent  to  the  office,  independent 
of  the  question  who  shall  fill  it.     They  are  brought  in  the  name 


PEOPLE  EX  REL.  BARTON  V.  LONDONER.  665 

and  on  behalf  of  the  people,  to  determine  whether  the  incumbent 
has  unlawfully  usurped  or  intruded  into,  or  is  unlawfully  holding, 
the  office.  They  are  not  primarily,  in  the  interest  of  any  individ- 
ual, but  are  intended  to  protect  the  public  generally  against  the 
unlawful  usurpation  of  offices  and  franchises.  It  is  true  that,  in 
the  absence  of  a  contesting  statute,  the  common-law  remedy  by  in- 
formation is  invoked  by  contesting  claimants,  though  the  relief 
obtained  is  inadequate  because  the  proceeding  stops  with  the 
ouster;  the  contestant  not  being  seated.  2  Dill.  Mun.  Corp.  §§ 
842-844.  Such  practice  would  be  more  readily  adopted,  under  like 
circumstances,  in  this  State,  since  the  proceeding  by  information, 
made  statutory,  has  been  so  enlarged  as  to  permit  the  adjudication 
of  the  claimant's  right  to  possession  as  well  as  the  incumbent's  title. 
Code,  ch.  28.  But  the  public  and  prerogative  function  of  this  pro- 
ceeding is  still,  under  our  information  statute,  its  most  important 
characteristic,  and  the  trial  of  a  contestant's  claim  is  secondary  and 
subordinate. 

It  by  no  means  follows  that  because  one  person  unlawfully  in- 
trudes into  or  holds  an  office  another  is  entitled  thereto.  The  in- 
cumbent may  have  a  majority  of  all  the  votes  cast,  but  nevertheless 
be  a  wrongdoer.  He  may  have  been  primarily  ineligible  or  have 
become  subsequently  disqualified.  If,  in  such  case,  he  be  ousted 
from  the  office,  his  opponent  is  not  installed.  A  vacancy  exists 
and  a  new  election  follows.  Darrow  v.  People,  supra.  The  pro- 
ceeding by  the  people,  through  which  the  intruder  is  turned  out 
and  the  vacancy  created,  is  not  an  "election  contest"  within  the 
meaning  of  this  constitutional  phrase;  nor  is  a  similar  investiga- 
tion by  the  people  for  frauds  that,  perchance,  were  not  discovered 
till  the  time  for  the  ordinary  statutory  election  contest  had  passed, 
such  a  proceeding.  The  incumbency,  in  all  such  cases,  is  a  public 
wrong;  and  for  this  reason  the  people  demand  the  removal.  The 
office,  like  the  franchise,  in  an  important  sense  belongs  to  the  peo- 
ple, and  they  simply  assert  their  right  to  have  it  filled  according 
to  law,  regardless  of  the  private  interest  of  any  contestant  or 
claimant. 

It  follows  from  the  foregoing  that,  in  our  judgment,  statutes 
passed  by  the  legislature,  in  obedience  to  the  constitutional  man- 
date on  the  subject  of  contested  elections,  do  not  prevent  inquiry 
by  quo  warranto  by  the  people  into  usurpations  and  unlawful  hold- 
ings of  office. 

We  are  aware  that  this  conclusion  is  not  in  harmony  with  the 


666  QUO  WARRANTO. 

view  taken  in  Ohio  and  Missouri,  under  constitutional  provisions 
substantially  similar.  State  v.  Marlow,  15  Ohio  St.  114;  State  v. 
Francis,  supra. 

But,  with  all  due  respect  to  those  able  courts,  we  believe  it  rests 
upon  sounder  principles  of  law,  as  well  as  wiser  considerations  of 
public  policy.  Surely,  doubts,  if  they  exist,  should  be  resolved  in 
favor  of  this  jurisdiction  by  the  courts.  It  is  a  matter  of  the  great- 
est public  importance  whether  ineligible  or  disqualified  persons,  or 
persons  who  by  election  frauds  have  secured  an  apparent  majority 
of  the  votes,  shall  be  permitted  to  usurp  and  hold  public  offices. 
Except  upon  legislation,  constitutional  or  statutory,  so  clear  as  to 
be  irresistible,  the  voice  of  the  people  in  this  matter  should  not 
be  silenced. 

3.  The  declaration  in  section  8,  article  7,  of  the  constitution, 
that  the  ballots  may  be  examined  in  contested  elections,  does  not 
limit  this  examination  to  such  proceedings.  The  right  mentioned 
has  always  been  freely  exercised  in  quo  warranto,  which  is  the 
common-law  method  of  inquiring  into  election  frauds.  And  the 
purpose  of  this  provision  was  to  give,  in  the  election  contests  au- 
thorized by  section  12  of  the  same  article,  already  considered,  the 
privilege  of  inspecting  and  comparing  ballots;  not  to  withdraw  it 
from  the  proceeding  in  which  theretofore  it  had  been  universally 
exercised.  The  leading  object  of  said  section  8  was  to  preserve 
the  purity  of  the  ballot  by  insuring  its  secrecy;  but,  lest  the  lan- 
guage indicating  this  intent  should  be  carried  too  far,  and  become 
the  means  of  perpetrating  fraud,  the  privilege  in  question  was 
carefully  extended  to  election  contests,  in  which,  perhaps,  it  might 
otherwise  have  been  challenged. 

4.  Chapter  27,  Code  of  Civil  Procedure  (Laws  1887,  p.  182), 
is  a  substitute  for  the  original  common-law  quo  warrayito  remedy. 
It  prescribed  an  enlarged  proceeding,  substantially  by  information 
in  the  nature  of  quo  warranto,  and  furnishes  the  exclusive  method, 
so  far  as  district  courts  are  concerned,  for  investigating  usurpa- 
tions of  office.  The  district  attorney  having  refused  to  act  in  the 
present  case,  relator  was  expressly  authorized  by  this  statute  to 
institute  the  proceeding.  Being  a  "freeholder,  resident  and  elec- 
tor" within  the  city  of  Denver,  relator's  capacity  to  proceed  in  the 
name  of  the  people  cannot  be  challenged  on  the  ground  of  insuf- 
ficiency of  interest.  The  fact  that  he  was  the  opposing  candidate, 
and  claims  to  have  received  a  majority  of  the  votes  legally  cast, 
does  not  work  his  disqualification.    It  may  be  that  he  is  more  in- 


PEOPLE  EX  REL.  BARTON  V.  LONDONER.  667 

terested  in  vindicating  his  alleged  private  right  than  he  is  in  re- 
dressing the  supposed  public  wrong.  But  this  fact,  if  it  be  a  fact, 
does  not  justify  our  refusal  to  investigate  in  this  case  the  alleged 
usurpation,  and  render  such  judgment  as  the  law  permits  and  the 
public  welfare  requires.  A  certain  degree  of  interest  on  the  part 
of  relators  in  quo  warranto  proceedings  is  generally  deemed  requi- 
site ;  and  the  ofBcious  intermeddling  by  parties  having  absolutely  no 
interest,  either  as  taxpayers  or  voters,  is  disfavored. 

The  foregoing  views  harmonize  in  the  main  with  those  expressed 
by  the  two  opinions  in  Darroiv  v.  People,  supra.  It  will  be  ob- 
served by  reference  to  those  opinions  that  the  specific  object  under 
section  12,  article  7,  of  the  constitution,  last  above  noticed,  was 
not  then  considered.  In  so  far,  however,  as  the  language  there  em- 
ployed would  seem  to  recognize  the  right  of  a  contesting  claimant 
to  ignore  the  constitutional,  statutory,  election-contest  remedy,  and 
have  his  personal  claims  to  office  adjudicated  in  the  proceeding  by 
information,  it  is  qualified  in  accordance  with  the  conclusion  above 
stated. 

The  demurrer  should  have  been  overruled,  and  the  judgment  is 

accordingly  reversed. 

Reversed. 

Other  instances  in  this  collection  of  the  use  of  the  quo  warranto  or 
its  statutory  substitute  to  try  title  to  office  in  election  contests  are  Boyd 
V.  Mills,  53  Kan.  594;  People  v.  Van  Cleve,  1  Mich.  362;  People  v.  Clute, 
SO  N.  Y.  451;  State  v.  Taylor,  108  N.  C.  196;  Smith  v.  Moore,  90  Ind.  294, 
supra. 


STATE  EX  REL.  CLEMENTS  V.  HUMPHRIES. 

Supreme  Court  of  Texas.    1889. 
74  Tex.  466. 

Appeal  from  Mills.    Tried  before  Hon.  W.  A.  Blackburn. 

The  opinion  states  the  ease. 

Gaines,  Associate  Justice.  This  was  an  information  in  the  na- 
ture of  a  quo  warranto  filed  in  the  name  of  the  state  upon  the  rela- 
tion of  P.  H.  Clements,  for  the  purpose  of  ousting  the  appellee 
from  the  office  of  the  clerk  of  the  county  court  of  Mills  County. 

Does  the  fact  that  the  respondent  held  out  a  promise  to  the 


668  QUO  WARRANTO. 

voters  of  the  county  to  serve  in  case  of  election  for  a  less  compensa- 
tion than  the  lawful  fees  of  the  office  disqualify  him  for  holding  it? 
Section  1  of  article  16  of"  our  Constitution  requires  every  officer 
before  he  enters  upon  the  duties  of  his  office  to  take  an  oath  or  af- 
firmation which  embraces  the  following  language:  "And  I  fur- 
thermore solemnly  swear  (or  affirm)  that  I  have  not  directly  nor 
indirectly  paid,  offered,  or  promised  to  pay,  contributed  nor  prom- 
ised to  contribute  any  money  or  valuable  thing,  or  promised  any 
office  or  employment  as  a  reward  for  the  giving  or  withholding  a 
vote  at  the  election  at  which  I  was  elected."  It  may  be  that  an 
offer  by  a  candidate  for  county  clerk  to  remit  in  case  of  his  elec- 
tion his  fees  for  ex  officio  services  should  be  deemed  an  offer  to 
contribute  to  each  taxpayer  his  proportion  of  the  taxes  necessary 
to  raise  the  sum  so  remitted. 

In  Caruthers  v.  Russell,  53  la.  346  (S.  C,  36  Am.  Rep.  222),  the 
Supreme  Court  of  Iowa  held  such  a  promise  virtually  an  offer  to 
bribe  the  voters,  and  it  seems  to  be  within  the  spirit  if  not  the  let- 
ter of  the  constitutional  provision  above  quoted.  But  it  does  not 
follow  that  in  the  absence  of  some  other  constitutional  or  statutory 
provision  that  a  candidate  who  has  made  such  promise  and  has 
received  the  highest  number  of  votes  and  has  taken  the  required 
oath  can  be  removed  from  office  by  the  mere  proof  of  the  fact  in 
the  proceeding  in  which  he  is  sought  to  be  ousted. 

The  case  of  The  Commonwealth  v.  Jans,  10  Bush  725,  is  an 
authority  bearing  upon  the  question.  The  constitution  of  Ken- 
tucky requires  every  person  before  accepting  office  to  take  an  oath 
that  he  has  not  fought  a  duel  or  sent  or  accepted  a  challenge  to 
fight  a  duel.  In  this  respect  the  oath  is  practically  the  same  as 
is  required  by  our  consitution.  Like  ours  that  constitution  also 
contained  the  further  provision  which  declared  that  any  one  who 
had  fought  a  duel  or  sent  or  accepted  a  challenge  should  be  dis- 
qualified from  holding  office.  In  the  case  cited  it  was  held  that 
a  party  who  had  been  elected  to  an  office  and  who  had  qualified  by 
taking  the  prescribed  oath  could  not  be  deprived  of  his  office  until 
he  had  been  legally  convicted  of  the  offense  of  having  sent  a  chal- 
lenge in  a  proper  criminal  proceeding  upon  an  indictment  chain- 
ing him  with  that  offense.  From  the  rule  so  established  it  would 
follow  that  if  section  one  of  article  16  stood  as  the  only  provision 
upon  this  subject,  and  if  it  should  be  construed  to  embrace  within 
its  terms  the  act  complained  of  in  this  proceeding,  the  respondent 
could  not  be  deprived  of  his  office  upon  this  ground  until  he  had 
been  lawfully  indicted  and  convicted  of  the  offense. 


STATE  EX  REL.  CLEMENTS  V.  HUMPHRIES.  669 

But  we  need  not  go  so  far.  The  constitution  has  another  pro- 
vision upon  this  matter.  Section  5  of  the  article  already  cited  pro- 
vides "that  every  person  shall  be  disqualified  from  holding  any 
office  of  profit  or  trust  in  this  state  who  shall  be  convicted  of  hav- 
ing given  or  offered  a  bribe  to  procure  his  election  or  appointment. ' ' 
If,  therefore,  it  should  be  held  that  the  act  of  the  respondent  was 
within  the  meaning  of  the  law  an  offer  to  bribe  voters,  it  follows 
from  the  section  quoted  that  he  could  not  be  deprived  of  the  office 
until  he  had  been  convicted  of  the  offense  in  a  court  of  competent 
jurisdiction  in  a  proceeding  instituted  and  prosecuted  according 
to  the  provisions  of  our  Code  of  Criminal  Procedure. 

We  conclude  that  our  constitution  does  not  warrant  the  removal 
of  the  respondent  from  office  for  the  act  charged  against  him  in  a 
proceeding  of  this  character  before  a  legal  conviction  of  the  of- 
fense. 

We  are  constrained,  therefore,  to  hold  that  neither  under  our 
constitution  nor  by  the  common  law  can  the  respondent  be  deprived 
of  the  office  he  holds  under  the  allegations  and  proof  made  in  this 
case. 

There  is  no  error  in  the  judgment  and  it  is  affirmed. 

AiJirmed. 

Instances  in  this  collection  of  the  use  of  the  quo  warranto  or  its  stat- 
utory substitute  to  oust  one  from  office  on  the  allegation  that  he  is  dis- 
qualified or  otherwise  ineligible,  or  improperly  appointed,  are  Bradley  v. 
Clark,  133  Cal.  196;  Attorney  General  v.  Marston,  66  N.  H.  485;  De  Turk 
V.  Commonwealth,  129  Pa.  St.  151;  Gray  v.  Seitz,  162  Ind.  1;  Fritts  v. 
Kuhl,  51  N.  J.  L.  191;  People  v.  Ward,  107  Cal.  236;  Reiter  v.  State,  51 
Ohio  St.  74;  People  v.  Murray,  70  N.  Y.  521,  supra. 

Quo  warranto  is  also  used  to  oust  one  holding  over  improperly  as  e.  g. 
after  having  been  removed  or  suspended,  or  after  expiration  of  term,  see 
Attorney  General  v.  Jochim,  99  Mich.  358;  State  v.  Bulkley,  61  Conn. 
287;  State  v.  Chatburn,  63  Iowa  659;  State  v.  Kennedy,  75  Conn.  704; 
State  V.  Hillyer,  2  Kan.  17;    State  v.  Megaarden,  85  Minn.  41,  supra. 

An  instance  of  a  criminal  action  to  punish  usurpation  is  Kreidler  v. 
State,  24  Ohio  St.  22,  supra. 

See  also  on  the  general  subject  of  the  quo  warranto  Field  v.  People, 
3  111.  79;  Dullam  v.  Willson,  53  Mich.  392;  Attorney  General  v.  Oakman, 
126  Mich.  717;  Commonwealth  v.  Waller,  145  Pa.  St.  235;  Commonwealth 
V.  Moir,  199  Pa.  St.  534. 

Quo  warranto  may  be  issued  to  one  claiming  the  right  to  exercise  the 
office  of  governor,  State  v.  Bulkley,  81  Conn.  287,  supra. 


CHAPTER  XV. 

THE  HABEAS  CORPUS. 

1,    Physical  Kestbaint. 

WALES  V.  WHITNEY. 

Supreme  Court  of  the  United  States.    October,  1884. 
114  V.  S.  564. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  the  judgment  of  the  Supreme  Court  of 
the  District  of  Columbia,  which  refused  to  make  an  order  on  a 
writ  of  habeas  corpus  relieving  the  appellant  from  the  custody  of 
the  appellee,  who,  it  is  alleged,  held  the  appellant  in  restraint  of 
his  liberty  unlawfully. 

The  original  petition  ....  sets  out  an  order  of  the  Secre- 
tary of  the  Navy,  under  which  this  restraint  is  exercised,  which 
order  is  in  the  following  terms: 

"Washington,  February  28th,  1885-. 
* '  Sir :     Transmitted  herewith  you  will  receive  charges,  with  spe- 
cifications, preferred  against  you  by  the  department. 

A  general  court-martial  has  been  ordered  to  convene  in  rooms 
numbered  32  and  33,  at  the  Navy  Department,  at  Washington, 
D.  C-,  at  12  o'clock  noon,  on  Monday,  the  9th  proximo,  at  which 
time  and  place  you  will  appear  and  report  yourself  to  Rear  Ad- 
miral Edward  Simpson,  United  States  Navy,  the  presiding  officer 
of  the  court,  for  trial.  The  Judge  Advocate  will  summon  such 
witnesses  as  you  may  require  for  your  defense. 

You  are  hereby  placed  under  arrest,  and  you  will  confine 
yourself  to  the  limits  of  the  city  of  Washington. 

Very  respectfully, 

Wm.  E.  Chandler, 

Secretary  of  the  Navy. 
Medical  Director 
Philip  S.  Wales, 

U.  S.  N.,  Washington,  D.  C." 
•  ••.«•••  •• 

670 


WALES  V,  WHITNEY.  671 

Two  questions  have  been  elaborately  argued  before  us,  namely : 

1.  Does  the  return  of  the  Secretary  of  the  Navy  to  the  writ 
and  its  accompanying  exhibits  show  such  restraint  of  the  liberty  of 
the  petitioner  by  that  officer,  as  justifies  the  use  of  the  writ  of 
habeas  corpus? 

2.  If  there  is  a  restraint,  which,  in  its  character,  demands  the 
issue  of  the  writ,  are  the  charges  for  which  the  petitioner  is  re- 
quired to  answer  the  naval  court-martial  of  the  class  of  which  such 
a  court  has  jurisdiction? 

The  latter  is  a  question  of  importance,  and  not  free  from  diffi- 
culty, since  its  solution  requires  the  court  to  decide  whether  the 
Surgeon-General  of  the  Navy,  as  Chief  of  the  Bureau  of  Medicine 
and  Surgery,  in  the  Department  of  the  Navy,  under  the  immediate 
supervision  of  the  Secretary,  is  liable  for  any  failure  to  perform 
his  duties  as  Surgeon-General,  to  be  tried  by  a  military  court,  un- 
der the  articles  of  war  governing  the  Navy,  or  has  a  right  for  such 
offenses  to  be  tried  alone  by  the  civil  courts,  and  according  to  the 
law  for  offenses  not  military.  Is  he,  in  that  character,  in  the  civil 
or  military  service  of  the  United  States?  The  difficulty  of  stating 
the  question  shows  the  embarrassment  attending  its  decision. 

The  other  question,  however,  has  precedence,  both  because  it  is 
the  one  on  which  the  court  of  the  District  decided  the  case,  because, 
if  there  was  no  such  restraint,  whether  legal  or  illegal,  as  to  call 
for  the  use  of  the  writ,  there  is  no  occasion  to  inquire  into  its  cause. 

It  is  obvious  that  petitioner  is  under  no  physical  restraint.  He 
walks  the  streets  of  Washington  with  no  one  to  hinder  his  move- 
ments, just  as  he  did  before  the  Secretary's  order  was  served  on 
him.  It  is  not  stated  as  a  fact  in  the  record,  but  it  is  a  fair  infer- 
ence, from  all  that  is  found  in  it,  that,  as  Medical  Director,  he  was 
residing  in  Washington  and  performing  there  the  duties  of  his 
office.  It  is  beyond  dispute  that  the  Secretary  of  the  Navy  had 
the  right  to  direct  him  to  reside  in  the  city  in  performance  of  these 
duties.  If  he  had  been  somewhere  else  the  Secretary  could  have 
ordered  him  to  Washington  as  Medical  Director,  and,  in  order  to 
leave  Washington  lawfully,  he  would  have  to  obtain  leave  of  ab- 
sence. He  must,  in  such  case,  remain  here  until  otherwise  ordered 
or  permitted.  It  is  not  easy  to  see  how  he  is  under  any  restraint 
of  his  personal  liberty  by  the  order  of  arrest,  which  he  was  not 
under  before.  Nor  can  it  be  believed  that,  if  this  order  had  made 
no  reference  to  a  trial  on  charges  against  him  before  a  court-mar- 
tial, he  would  have  felt  any  restraint  whatever,  though  it  had  di- 
rected him  to  remain  in  the  city  until  further  orders.    If  the 


672  THE  HABEAS  CORPUS. 

order  had  directed  him  so  to  remain,  and  act  as  a  member  of  snch 
court,  can  anyone  believe  he  would  have  felt  himself  a  prisoner, 
entitled  to  the  benefit  of  a  writ  of  habeas  corpus? 

On  the  other  hand,  there  is  an  obvious  motive  on  the  part  of  the 
petitioner  for  construing  this  order  as  making  him  a  prisoner  in 
the  custody  of  the  Secretary. 

That  motive  is  to  have  himself  brought  before  a  civil  court,  which, 
on  inquiry  into  the  cause  of  his  imprisonment,  may  decide  that  the 
offense  with  which  the  Secretary  charges  him  is  not  of  a  military 
character,  is  not  one  of  which  a  naval  court-martial  can  entertain 
jurisdiction,  and,  releasing  him  from  the  restraint  of  the  order 
of  arrest,  it  would  incidentally  release  him  from  the  power  of  that 
court. 

But  neither  the  Supreme  Court  of  the  District  nor  this  court  has 
any  appellate  jurisdiction  over  the  naval  court-martial,  nor  over 
offenses  which  such  a  court  has  power  to  try.  Neither  of  these 
courts  is  authorized  to  interfere  with  it  in  the  performance  of  its 
duty,  by  a  writ  of  prohibition  or  any  order  of  that  nature.  The 
civil  courts  can  relieve  a  person  from  imprisonment  under  order 
of  such  court  only  by  writ  of  habeas  corpus,  and  then  only  when 
it  is  made  apparent  that  it  proceeds  without  jurisdiction.  If  there  is 
no  restraint  there  is  no  right  in  the  civil  court  to  interfere.  Its 
power  then  extends  no  further  than  to  release  the  prisoner.  It 
cannot  remit  a  fine,  or  restore  to  an  office,  or  reverse  the  judgment 
of  the  military  court.  Whatever  effect  the  decision  of  the  court 
may  have  on  the  proceedings,  orders  or  judgments  of  the  military 
court,  is  incidental  to  the  order  releasing  the  prisoner.  Of  course, 
if  there  is  no  prisoner  to  release,  if  there  is  no  custody  to  be  dis- 
charged, if  there  is  no  such  restraint  as  requires  relief,  then  the 
civil  court  has  no  power  to  interfere  with  the  military  court,  or 
other  tribunal  over  which  it  has  by  law  no  appellate  jurisdiction. 

The  writ  of  habeas  corpus  is  not  a  writ  of  error,  though  in  some 
cases  in  which  the  court  issuing  it  has  appellate  power,  over  the 
court  by  whose  order  the  petitioner  is  held  in  custody,  it  may  be 
used  with  the  writ  of  certiorari  for  that  purpose.  In  such  cases, 
however,  as  the  one  before  us,  it  is  not  a  writ  of  error.  Its  pur- 
pose is  to  enable  the  court  to  inquire,  first,  if  the  petitioner  is  re- 
strained of  his  liberty.  If  he  is  not  the  court  can  do  nothing  but 
discharge  the  writ.  If  there  is  such  restraint,  the  court  can  then 
inquire  into  the  cause  of  it,  and  if  the  alleged  cause  be  unlawful  it 
must  then  discharge  the  prisoner. 

There  is  no  very  satisfactory  definition  to  be  found  in  the  ad- 


WALES  V.  WHITNEY.  673 

judged  cases  of  the  character  of  restraint  or  imprisonment  suf- 
fered by  a  party  applying  for  the  writ  of  habeas  corpus,  which  is 
necessary  to  sustain  the  writ.  This  can  hardly  be  expected  from 
the  variety  of  restraints  for  which  it  is  used  to  give  relief.  Con- 
finement under  civil  and  criminal  process  may  be  relieved.  Wives 
restrained  by  husbands,  children  withheld  from  the  proper  parent 
or  guardian,  persons  held  under  arbitrary  custody  by  private  indi- 
viduals, as  in  a  madhouse,  as  well  as  those  under  military  control, 
may  all  become  proper  subjects  of  relief  by  the  writ  of  habeas 
corpus.  Obviously,  the  extent  and  character  of  the  restraint  which 
justifies  the  writ  must  vary  according  to  the  nature  of  the  control 
which  is  asserted  over  the  party  in  whose  behalf  the  writ  is  prayed. 

In  the  case  of  a  man  in  the  military  or  naval  service,  where  he 
is,  whether  as  an  officer  or  a  private,  always  more  or  less  subject 
to  his  movements,  by  the  very  necessity  of  military  rule  and  subor- 
dination, to  the  orders  of  his  superior  officer,  it  should  be  made 
clear  that  some  unusual  restraint  upon  his  liberty  of  personal 
movement  exists  to  justify  the  issue  of  the  writ;  otherwise  every 
order  of  the  superior  officer  directing  the  movements  of  his  subor- 
dinate, which  necessarily  to  some  extent  curtails  his  freedom  of 
will,  may  be  held  to  be  a  restraint  of  his  liberty,  and  the  party  so 
ordered  may  seek  relief  from  obedience  by  means  of  a  writ  of 
habeas  corpus. 

Something  more  than  moral  restraint  is  necessary  to  make  a' 
case  for  habeas  corpus.  There  must  be  actual  confinement  or  the 
present  means  of  enforcing  it.  The  class  of  cases  in  which  a  sheriff 
or  other  officer,  with  a  writ  in  his  hands  for  the  arrest  of  a  person 
whom  he  is  required  to  take  into  custody,  to  whom  the  person  to 
be  arrested  submits  without  force  being  applied,  comes  under  this 
definition.  The  officer  has  the  authority  to  arrest  and  the  power 
to  enforce  it.  If  the  party  named  in  the  writ  resists  or  attempts  to 
resist,  the  officer  can  summon  bystanders  to  his  assistance,  and  may 
himself  use  personal  violence.  Here  the  force  is  imminent  and  the 
party  is  in  presence  of  it.  It  is  a  physical  power  which  controls 
him,  though  not  called  into  demonstrative  action. 

It  is  said  in  argument  that  such  is  the  power  exercised  over  the 
appellant  under  the  order  of  the  Secretary  of  the  Navy.  But 
this  is,  we  think,  a  mistake.  If  Dr.  Wales  had  chosen  to  disobey 
this  order,  he  had  nothing  to  do  but  take  the  next  or  any  subse- 
quent train  from  the  city  and  leave  it.  There  was  no  one  at  hand 
to  hinder  him.  And  though  it  is  said  that  a  file  of  marines  or 
some  proper  officer  could  have  been  sent  to  arrest  and  bring  him 
43 


674  THE  HABEAS  CORPUS. 

back,  this  could  only  be  done  by  another  order  of  the  Secretary, 
and  would  be  another  arrest,  and  a  real  imprisonment  under 
another  and  distinct  order.  Here  would  be  a  real  restraint  of 
liberty,  quite  different  from  the  first.  The  fear  of  this  latter  pro- 
ceeding, which  may  or  may  not  keep  Dr.  Wales  within  the  limits 
of  the  city,  is  a  moral  restraint  which  concerns  his  own  conveni- 
ence, and  in  regard  to  which  he  exercises  his  own  will. 

"While  the  acts  of  Congress  concerning  this  writ  are  not  de- 
cisive, perhaps,  as  to  what  is  a  restraint  of  liberty,  they  are  evi- 
dently framed  in  their  provisions  for  proceedings  in  such  cases  on 
the  idea  of  the  existence  of  some  actual  restraint.  Rev.  Stat.  §  754 
says  the  application  for  the  writ  must  set  forth  "in  whose  custody 
he  (the  petitioner)  is  detained,  and  by  virtue  of  what  claim  or 
authority,  if  known;"  §  755,  that  *'the  writ  must  be  directed  to 
the  person  in  whose  custody  the  party  is;"  §  757,  that  this  person 
shall  certify  to  the  court  of  justice  before  whom  the  writ  is  return- 
able the  true  cause  of  the  detention;  and  by  §  758  he  is  required 
'*at  the  same  time  to  bring  the  body  of  the  party  before  the  judge 
who  granted  the  writ." 

All  these  provisions  contemplate  a  proceeding  against  some  per- 
son who  has  the  immediate  custody  of  the  party  detained,  with 
the  power  to  produce  the  body  of  such  party  before  the  court  or 
judge,  that  he  may  be  liberated  if  no  sufficient  reason  is  shown  to 
the  contrary. 

In  case  of  a  person  who  is  going  at  large,  with  no  one  controlling 
or  watching  him,  or  detaining  him,  his  body  cannot  be  produced 
by  the  person  to  whom  the  writ  is  directed,  unless  by  consent  of 
the  alleged  prisoner,  or  by  his  capture  and  forcible  traduction  into 
the  presence  of  the  court. 

The  record  in  the  present  case  shows  that  no  such  thing  was 
done.  The  Secretary  denies  that  Wales  is  in  his  custody,  and  he 
does  not  produce  his  body ;  but  Wales,  on  the  direction  of  the  Sec- 
retary, appears  without  any  compulsion,  and  reports  himself  to 
the  court  and  to  Justice  Cox  as  he  did  to  the  court-martial. 

We  concur  with  the  Supreme  Court  of  the  District  in  the  opinion 
that  the  record  does  not  present  such  a  case  of  restraint  of  per- 
sonal liberty  as  to  call  for  discharge  by  a  writ  of  habeas  corpus. 

In  thus  deciding  we  are  not  leaving  the  appellant  without  remedy 
if  his  counsel  are  right  in  believing  the  court-martial  has  no  juris- 
diction of  the  offense  of  which  he  is  charged.  He  can  make  that 
objection  to  that  court  before  trial.    He  can  make  it  before  judg- 


WALES  V.  WHITNEY.  675 

ment  after  the  facts  are  all  before  the  court.    He  can  make  it  be- 
fore the  reviewing  tribunal. 

If  that  court  finds  him  guilty,  and  imposes  imprisonment  as  part 
of  a  sentence,  he  can  then  have  a  writ  to  Believe  him  of  that  im- 
prisonment. If  he  should  be  deprived  of  office,  he  can  sue  for  his 
pay  and  have  the  question  of  the  jurisdiction  of  the  court  which 
made  such  an  order  inquired  into  in  that  suit.  If  his  pay  is 
stopped,  in  whole  or  in  part,  he  can  do  the  same  thing.  In  all 
these  modes  he  can  have  relief  if  the  court  is  without  jurisdiction, 
and  the  inquiry  into  that  jurisdiction  will  be  more  satisfactory 
after  the  court  shall  have  decided  on  the  nature  of  the  offense  for 
which  it  punishes  him  than  it  can  before.  And  this  manner  of 
relief  is  more  in  accord  with  the  ordinary  administration  of  jus- 
tice and  the  delicate  relations  of  the  two  classes  of  courts,  civil  and 
military,  than  the  assumption  in  advance  by  the  one  court  that 
the  other  will  exercise  a  jurisdiction  which  does  not  belong  to  it. 

The  judgment  of  the  Supreme  Court  of  the  District  of  Colum- 
bia is 

Affirmed. 


II.    Judgments  op  Courts. 

EX  PARTE  WATKINS. 

Supreme  Court  of  the  United  States.    January,  1830. 
3  Peters  192. 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 

This  is  a  petition  for  a  writ  of  habeas  corpus  to  bring  the  body 
of  Tobias  Watkins  before  this  court  for  the  purpose  of  inquiring 
into  the  legality  of  his  confinement  in  jail.  The  petition  states  that 
he  is  detained  in  prison  by  virtue  of  a  judgment  of  the  Circuit 
Court  of  the  United  States,  for  the  county  of  Washington,  in  the 
District  of  Columbia,  rendered  in  a  criminal  prosecution  carried  on 
against  him  in  that  court.  A  copy  of  the  indictment  and  judgment 
is  annexed  to  the  petition,  and  the  motion  is  founded  on  the  allega- 
tion that  the  indictment  charges  no  offense  for  which  the  prisoner 
was  punishable  in  that  court,  or  of  which  that  court  could  take 
cognizance;  and  consequently  that  the  proceedings  are  coram  non 
judice,  and  totally  void. 

This  application  is  made  to  a  court  which  has  no  jurisdiction  ia 


676  THE  HABEAS  CORPUS. 

criminal  cases  (3  Cranch  169) ;  which  could  not  revise  this  judg- 
ment; could  not  reverse  or  affirm  it,  were  the  record  brought  up 
directly  by  writ  of  error.  The  power,  however,  to  award  writs  of 
habeas  corpus  is  conferred  expressly  on  this  court  by  the  fourteenth 
section  of  the  judicial  act  and  has  been  repeatedly  exercised.  No 
doubt  exists  respecting  the  power ;  the  question  is,  whether  this  be 
a  case  in  which  it  ought  to  be  exercised.  The  cause  of  imprison- 
ment is  shown  as  fully  by  the  petitioner  as  it  could  appear  on  the 
return  of  the  writ ;  consequently  the  writ  ought  not  to  be  awarded, 
if  the  court  is  satisfied  that  the  prisoner  would  be  remanded  to 
prison. 

No  law  of  the  United  States  prescribes  the  cases  in  which  this 
great  writ  shall  be  issued,  nor  the  power  of  the  court  over  the  party 
brought  up  by  it.  The  term  is  used  in  the  Constitution  as  one 
which  was  well  understood;  and  the  judicial  act  authorizes  this 
court,  and  all  the  courts  of  the  United  States,  and  the  judges  there- 
of, to  issue  the  writ  "for  the  purpose  of  inquiring  into  the  cause 
of  commitment. ' '  This  general  reference  to  a  power  which  we  are 
required  to  exercise,  without  any  precise  definition  of  that  power, 
imposes  on  us  the  necessity  of  making  some  inquiries  into  its  use, 
according  to  that  law  which  is  in  a  considerable  degree  incorporated 
into  our  own.  The  writ  of  habeas  corpus  is  a  high  prerogative 
writ,  known  to  the  common  law,  the  great  object  of  which  is  the  lib- 
eration of  those  who  may  be  imprisoned  without  sufficient  cause. 
It  is  in  the  nature  of  a  writ  of  error,  to  examine  the  legality  of  the 
commitment.  The  English  judges,  being  originally  under  the  in- 
fluence of  the  crown,  neglected  to  use  this  writ  where  the  govern- 
ment entertained  suspicions  which  could  not  be  sustained  by  evi- 
dence; and  the  writ  when  issued  was  sometimes  disregarded  or 
evaded,  and  great  individual  oppression  was  suffered  in  consequence 
of  delays  in  bringing  prisoners  to  trial.  To  remedy  this  evil  the 
celebrated  habeas  corpus  act  of  the  31st  of  Charles  II  was  enacted, 
for  the  purpose  of  securing  the  benefits  for  which  the  writ  was 
given.  This  statute  may  be  referred  to  as  describing  the  cases 
in  which  relief  is,  in  England,  afforded  by  this  writ  to  a  person 
detained  in  custody.  It  enforces  the  common  law.  This  statute 
excepts  from  those  who  are  entitled  to  its  benefits,  persons  commit- 
ted for  felony  or  treason  plainly  expressed  in  the  warrant,  as  well 
as  persons  convicted  or  in  execution. 

The  exception  of  persons  convicted  applies  particularly  to  the 
application  now  under  consideration.  The  petitioner  is  detained 
in  prison  by  virtue  of  the  judgment  of  a  court,  which  court  posses- 


EX  PARTE  WATKINS.  677 

ses  general  and  final  jurisdiction  in  criminal  cases.    Can  this  judg- 
ment be  re-examined  upon  a  writ  of  habeas  corpus? 

This  writ  is,  as  has  been  said,  in  the  nature  of  a  writ  of  error, 
which  brings  up  the  body  of  the  prisoner  with  the  cause  of  commit- 
ment. The  court  can  undoubtedly  inquire  into  the  sufficiency  of 
that  cause ;  but  if  it  be  the  judgment  of  a  court  of  competent  juris- 
diction, especially  a  judgment  withdrawn  by  law  from  the  revision 
of  this  court,  is  not  the  judgment  in  itself  sufficient  cause?  Can 
the  court,  upon  this  writ,  look  beyond  the  judgment,  and  re-examine 
the  charges  upon  which  it  was  rendered?  A  judgment,  in  its  na- 
ture, concludes  the  subject  on  which  it  is  rendered,  and  pronounces 
the  law  of  the  case.  The  judgment  of  a  court  of  record,  whose 
jurisdiction  is  final,  is  as  conclusive  on  all  the  world  as  the  judg- 
ment of  this  court  would  be.  It  is  as  conclusive  on  this  court  as  it 
is  on  other  courts.  It  puts  an  end  to  inquiry  concerning  the  fact, 
by  deciding  it. 

The  counsel  for  the  prisoner  admit  the  application  of  these  prin- 
ciples to  a  case  in  which  the  indictment  alleges  a  crime  cognizable 
in  the  court  by  which  the  judgment  was  pronounced ;  but  they  deny 
their  application  to  a  case  in  which  the  indictment  chaises  an  of- 
fense not  punishable  criminally  according  to  the  law  of  the  land. 
But  with  what  propriety  can  this  court  look  into  the  indictment? 
We  have  no  power  to  examine  the  proceedings  on  a  writ  of  error, 
and  it  would  be  strange  if,  under  color  of  a  writ  to  liberate  an 
individual  from  unlawful  imprisonment,  we  could  substantially 
reverse  a  judgment  which  the  law  has  placed  beyond  our  control. 
An  imprisonment  under  a  judgment  cannot  be  unlawful,  imless 
that  judgment  be  an  absolute  nullity ;  and  it  is  not  a  nullity  if  the 
court  has  general  jurisdiction  of  the  subject,  although  it  should  be 
erroneous.  The  Circuit  Court  of  the  District  of  Columbia  is  a  court 
of  record,  having  general  jurisdiction  over  criminal  cases.  An  of- 
fense cognizable  in  any  court,  is  cognizable  in  that  court.  If  the 
offense  be  punishable  by  law,  that  court  is  competent  to  inflict  the 
punishment.  The  judgment  of  such  a  tribunal  has  aU  the  obliga- 
tion which  the  judgment  of  any  tribunal  can  have.  To  determine 
whether  the  offense  charged  in  the  indictment  be  legally  punishable 
or  not,  is  among  the  most  unquestionable  of  its  powers  and  duties. 
The  decision  of  this  question  is  the  exercise  of  jurisdiction,  whether 
the  judgment  be  for  or  against  the  prisoner.  The  judgment  is 
equally  binding  in  the  one  case  and  in  the  other ;  and  must  remain 
in  full  force  unless  reversed  regularly  by  a  superior  court  capable 
of  reversing  it. 


678  THE  HABEAS  CORPUS. 

Without  looking  into  the  indictment  under  which  the  prosecution 
against  the  petitioner  was  conducted,  we  are  unanimously  of  opinion 
that  the  judgment  of  a  court  of  general  criminal  jurisdiction  justi- 
fies his  imprisonment,  and  that  the  writ  of  habeas  corpus  ought  not 
to  be  awarded. 

On  consideration  of  the  rules  granted  in  this  case,  on  a  prior 
day  of  this  term,  to  wit,  on  Tuesday,  the  26th  of  January  of  the 
present  term  of  this  court,  and  of  the  arguments  thereupon  had; 
it  is  considered,  ordered  and  adjudged  by  this  court,  that  the  said 
rule  be,  and  the  same  is  hereby,  discharged,  and  that  the  prayer  of 
the  petitioner  for  a  writ  of  habeas  corpus  be,  and  the  same  is  hereby, 

Refused. 

The  rule  of  the  principal  case  that  the  writ  will  Issue  only  on  prob- 
able cause  shown,  is  not  adopted  In  all  states,  Nash  v.  People,  36  N.  Y. 
607,  while  in  some  states  its  issue  may  be  forced  by  mandamus,  Ex  parte 
Mahone,  30  Ala.  49.  Where  its  issue  is  not  merely  ministerial,  Its  allow- 
ance or  refusal  is  appealable.    Ex  parte  Mllligan,  4  Wall.  2. 


III.    Excess  op  Jurisdiction. 

EX  PARTE  REED. 

Supreme  Court  of  the  United  States.    October,  1&79. 
100  U.  S.  13. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court. 

There  is  no  controversy  in  this  case  about  the  facts.  The  ques- 
tions we  are  called  upon  to  consider  are  all  questions  of  law.  Ai 
brief  summary  of  the  facts  will  therefore  be  sufficient. 

The  petitioner.  Reed,  was  a  clerk  of  a  paymaster  in  the  navy  of 
the  United  States.  He  was  duly  appointed  and  had  accepted  by 
a  letter,  wherein,  as  required,  he  bound  himself  "to  be  subject  to 
the  laws  and  regulations  for  the  government  of  the  navy  and  the 
discipline  of  the  vessel."  His  name  was  placed  on  the  proper  mus- 
ter-roll, and  he  entered  upon  the  discharge  of  his  duties.  While 
serving  in  this  capacity,  charges  of  malfeasance  were  preferred 
against  him,  and  on  the  26th  of  June,  1878,  he  was  directed  by 
Rear  Admiral  Nichols  to  appear  and  answer  before  a  general  court- 
martial,  convened  pursuant  to  an  order  of  that  officer  on  board  the 
United  States  ship  "Essex,"  then  stationed  at  Rio  Janeiro,  in  Bra- 
zil.   The  court  found  the  petitioner  guilty,  and  sentenced  him  ao- 


EX  PARTE  EEED.  679 

cordingly.  The  admiral  declined  to  approve  the  sentence,  and  re- 
mitted the  proceedings  back  to  the  court,  that  the  sentence  might 
be  revised. 

This  sentence  was  different  from  the  preceding  one  in  two  par- 
ticulars, and  in  both  it  was  more  severe.  It  was  approved  by  the 
admiral  and  ordered  to  be  carried  out.  The  court  was  subsequently 
dissolved.  While  in  confinement,  under  the  sentence,  on  board  a 
naval  vessel  at  Boston,  the  petitioner  sued  out  a  writ  of  hdbeas  cor^ 
pus,  and  brought  his  case  before  the  Circuit  Court  of  the  United 
States  for  the  District  of  Massachusetts.  After  a  full  hearing, 
that  court  adjudged  against  him,  and  ordered  him  back  into  the 
custody  of  the  naval  officer  to  whom  the  writ  was  addressed.  The 
petitioner  thereupon  made  this  application  in  order  that  the  con- 
clusions reached  by  the  Circuit  Court  may  be  reviewed  by  this 
tribunal. 

Three  points  in  support  of  the  petition  have  been  brought  to  our 
ajttention.    It  is  insisted — 

1.  That  the  court  had  no  jurisdiction  to  try  a  p(aymaster's  clerk. 

2.  That  when  the  first  sentence  was  pronounced,  the  power  of 
the  court  was  exhausted,  and  that  the  second  sentence  was,  there- 
fore, a  nullity. 

3.  That  the  court  could  revise  its  former  sentence  only  on  the 
ground  of  mistake,  and  that  there  was  no  mistake,  and  consequently 
no  power  of  revision. 

The  court  had  jurisdiction  over  the  person  and  the  case.  It  is  the 
organism  provided  by  law  and  clothed  with  the  duty  of  administer- 
ing justice  in  this  class  of  cases.  Having  had  such  jurisdiction,  its 
proceedings  cannot  be  collaterally  impeached  for  any  mere  error  or 
irregularity,  if  there  were  such,  committed  within  the  sphere  of  its 
authority.  Its  judgments,  when  approved  as  required,  rest  on  the 
same  basis,  and  are  surrounded  by  the  considerations  which  give 
conclusiveness  to  the  judgments  of  other  legal  tribunals,  including 
as  well  the  lowest  as  the  highest,  under  like  circumstances.  The  ex- 
ercise of  discretion,  within  authorized  limits,  cannot  be  assigned  for 
error  and  made  the  subject  of  review  by  an  appellate  court. 

We  do  not  overlook  the  point  that  there  must  be  jurisdiction  to 
give  the  judgment  rendered,  as  well  as  to  hear  and  determine  the 
cause.  If  a  magistrate  having  the  authority  to  fine  for  assault  and 
battery  should  sentence  the  offender  to  be  imprisoned  in  the  peni- 


680  THE  HABEAS  CORPUS. 

tentiary,  or  to  suffer  the  punishment  prescribed  for  homicide,  his 
judgment  would  be  as  much  a  nullity  as  if  the  preliminary  jurisdic- 
tion to  hear  and  determine  had  not  existed.  Every  act  of  a  court 
beyond  its  jurisdiction  is  void.  Cornett  v.  Williams,  20  Wall.  226 ; 
Windsor  v.  McVeigh,  93  U.  S.  274;  7  Wait's  Actions  and  Defences, 
181.  Here  there  was  no  defect  of  jurisdiction  as  to  anything  that 
was  done.  Beyond  this  we  need  not  look  into  the  record.  What- 
ever was  done,  that  the  court  could  do  under  any  circumstance,  we 
must  presume  was  properly  done.  If  error  was  committed  in  the 
rightful  exercise  of  authority,  we  cannot  correct  it. 

A  writ  of  habeas  corpus  cannot  be  made  to  perform  the  functions 
of  a  writ  of  error.  To  warrant  the  discharge  of  the  prisoner,  the 
sentence  under  which  he  is  held  must  be,  not  merely  erroneous  and 
voidable,  but  absolutely  void.  Ex  Parte  Kearney,  7  Wheat.  38; 
Ex  parte  Watkins,  3  Pet.  193 ;  Ex  parte  Milligan,  4  Wall.  2. 

The  application  for  the  petition  is,  therefore,  denied. 


EX  PARTE  SIEBOLD. 


^ 


Supreme  Court  of  the  United  States.    October,  1879. 
100  U.  8.  371. 

Petition  for  writ  of  habeas  corpus. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court. 

The  petitioners  in  this  case,  Albert  Siebold,  Walter  Tucker,  Mar- 
tin C.  Bums,  Lewis  Coleman  and  Henry  Bowers,  were  judges  of 
election  at  different  voting  precincts  in  the  city  of  Baltimore,  at 
the  election  held  in  that  city,  and  in  the  State  of  Maryland,  on  the 
fifth  day  of  November,  1878,  at  which  representatives  to  the  Forty- 
sixth  Congress  were  voted  for. 

At  the  November  Term  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  Maryland,  an  indictment  against  each  of  the 
petitioners  was  found  in  said  court,  for  offences  alleged  to  have 
been  committed  by  them  respectively  at  their  respective  precincts 
whilst  being  such  judges  of  election ;  upon  which  indictments  they 
were  severally  tried,  convicted,  and  sentenced  by  said  court  to  fine 
and  imprisonment.  They  now  apply  to  this  court  for  a  writ  of  ha- 
beas corpus  to  be  relieved  from  imprisonment. 

The  records  of  the  several  indictments  and  proceed- 


EX  PARTE  SIEBOLD.  681 

ings  thereon  were  annexed  to  the  respective  original  petitions,  and 
are  before  us.  These  indictments  were  framed  partly  under  sect. 
5515  and  partly  under  sect.  5522  of  the  Revised  Statutes  of  the 
United  States;  and  the  principal  questions  raised  by  the  applica- 
tion are,  whether  those  sections,  and  certain  sections  of  the  title  of 
the  Revised  Statutes  relating  to  the  elective  franchise,  which  they 
are  intended  to  enforce,  are  within  the  constitutional  power  of  Con- 
gress to  enact.  If  they  are  not,  then  it  is  contended  that  the  Circuit 
Court  has  no  jurisdiction  of  the  cases,  and  that  the  convictions  and 
sentences  of  imprisonment  of  the  several  petitioners  were  illegal 
and  void. 

The  jurisdiction  of  this  court  to  hear  the  case  is  the  first  point 
to  be  examined.  The  question  is  whether  a  party  imprisoned  under 
a  sentence  of  a  United  States  court,  upon  conviction  of  a  crime 
created  by  and  indictable  under  an  unconstitutional  act  of  Con- 
gress, may  be  discharged  from  imprisonment  by  this  court  on  /lo- 
heas  corpus,  although  it  has  no  appellate  jurisdiction  by  writ  of 
error  over  the  judgment.  It  is  objected  that  the  case  is  one  of 
original  and  not  appellate  jurisdiction,  and,  therefore,  not  within 
the  jurisdiction  of  this  court.  But  we  are  clearly  of  opinion  that 
it  is  appellate  in  its  character.  It  requires  us  to  revise  the  act  of 
the  Circuit  Court  in  making  the  warrants  of  commitment  upon  the 
convictions  referred  to.  This,  according  to  all  decisions,  is  an 
exercise  of  appellate  power.  Ex  parte  Burford,  3  Cranch  448; 
Ex  parte  BoUman  and  Swartwout.  4  id.  100;  Ex  parte  Yerger,  8 
Wall.  98. 

That  this  court  is  authorized  to  exercise  appellate  jurisdiction  by 
habeas  corpus  directly  is  a  position  sustained  by  abundant  author- 
ity. It  has  general  power  to  issue  the  writ,  subject  to  the  constitu- 
tional limitations  of  its  jurisdiction,  which  are,  that  it  can  only  ex- 
ercise original  jurisdiction  in  cases  affecting  ambassadors,  public 
ministers  and  consuls,  and  eases  in  which  a  state  is  a  party ;  but  has 
appellate  jurisdiction  in  all  other  cases  of  federal  cognizance,  ''with 
such  exceptions  and  under  such  regulations  as  Congress  shall 
make."  Having  this  general  power  to  issue  the  writ,  the  court  may 
issue  it  in  the  exercise  of  original  jurisdiction  where  it  has  original 
jurisdiction ;  and  may  issue  it  in  the  exercise  of  appellate  jurisdic- 
tion where  it  has  such  jurisdiction,  which  is  in  all  cases  not  pro- 
hibited by  law  except  those  in  which  it  has  original  jurisdiction 
only.  Ex  parte  Bollman  and  Swartwout,  supra;  Ex  parte  Watkins, 
3  Pet.  202;  7  id.  568;  Ex  parte  Wells,  18  How.  307,  328;  Ableman 
v.  Booth,  21  id.  506 ;  Ex  parte  Yerger,  8  Wall.  85. 


682  THE  HABEAS  CORPUS. 

There  are  other  limitations  of  the  jurisdiction,  however,  arising 
from  the  nature  and  objects  of  the  writ  itself,  as  defined  by  the 
common  law,  from  which  its  name  and  incidents  are  derived.  It 
cannot  be  used  as  a  mere  writ  of  error.  Mere  error  in  the  judg- 
ment or  proceedings,  under  and  by  virtue  of  which  a  party  is  im- 
prisoned, constitutes  no  ground  for  the  issue  of  the  writ.  Hence, 
upon  a  return  to  a  habeas  corpus y  that  the  prisoner  is  detained 
under  a  conviction  and  sentence  by  a  court  having  jurisdiction  of 
the  cause,  the  general  rule  is,  that  he  will  be  instantly  remanded. 
No  inquiry  will  be  instituted  into  the  regularity  of  the  proceedings, 
unless,  perhaps,  where  the  court  has  cognizance  by  writ  of  error 
or  appeal  to  review  the  judgment.  In  such  a  case,  if  the  error  be 
apparent  and  the  imprisonment  unjust,  the  appellate  court  may, 
perhaps,  in  its  discretion,  give  immediate  relief  on  habeas  corpus, 
and  thus  save  the  party  the  delay  and  expense  of  a  writ  of  error. 
Bac.  Abr.  Hab.  Cor.  B.  13;  Bethel's  Case,  Salk.  348;  5  Mod.  19. 
But  the  general  rule  is  that  a  conviction  and  sentence  by  a  court 
of  competent  jurisdiction  is  lawful  cause  of  imprisonment,  and  no 
relief  can  be  given  by  habeas  corpus.  The  only  ground  on  which 
this  court,  or  any  court,  without  some  special  statute  authorizing  it, 
will  give  relief  on  habeas  corpus  to  a  prisoner  under  conviction  and 
sentence  of  another  court  is  the  want  of  jurisdiction  in  such  court 
over  the  person  or  the  cause,  or  some  other  matter  rendering  its  pro- 
ceedings void. 

We  are  clearly  of  opinion  that  the  question  raised 

in  the  cases  before  us  is  proper  for  consideration  on  habeas  corpus. 
The  validity  of  the  judgments  is  assailed  on  the  ground  that  the 
acts  of  Congress  under  which  the  indictments  were  found  are  un- 
constitutional. If  this  position  is  well  taken,  it  affects  the  founda- 
tion of  the  whole  proceedings.  An  unconstitutional  law  is  void; 
and  is  as  no  law.  An  offence  created  by  it  is  not  a  crime.  A  convic- 
tion under  it  is  not  merely  erroneous,  but  is  illegal  and  void,  and 
cannot  be  a  legal  cause  of  imprisonment.  It  is  true,  if  no  writ  of 
error  lies,  the  judgment  may  be  final,  in  the  sense  that  there  may  be 
means  of  reversing  it.  But  personal  liberty  is  of  so  great  moment 
in  the  eye  of  the  law  that  the  judgment  of  an  inferior  court  affecting 
it  is  not  deemed  so  conclusive  that,  as  we  have  seen,  the  question  of 
the  court's  authority  to  try  and  imprison  the  party  may  be  reviewed 
on  habeas  corpus  by  a  superior  court  or  judge  having  authority  to 
award  the  writ.  We  are  satisfied  that  the  present  is  one  of  the  cases 
in  which  this  court  is  authorized  to  take  such  jurisdiction.    We 


PEOPLE  EX  REL.  TWEED  V.  LISCOMB.  683 

think  so,  because,  if  the  laws  are  unconstitutional  and  void,  the  Cir- 
cuit Court  acquired  no  jurisdiction  of  the  causes.  Its  authority  to 
indict  and  try  the  petitioners  arose  solely  upon  these  laws. 


PEOPLE  EX  REL.  TWEED  V.  LISCOMB. 

Court  of  Appeals  of  New  York.    June,  1875. 
60  N.  r.  559. 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  ju- 
dicial department,  to  review  judgment  affirming  upon  certiorari  an 
order  of  the  Court  of  Oyer  and  Terminer  in  and  for  the  city  and 
county  of  New  York,  dismissing  a  writ  of  habeas  corpus  issued  upon 
the  application  of  the  relator,  and  remanding  him  to  custody.  Re- 
ported below,  3  Hun.  760;  6  N.  Y.  S.  C.  (T.  &  C.)  258. 

It  appeared  by  the  papers  that  the  relator,  William  M.  Tweed, 
was  confined  in  the  New  York  penitentiary  on  Blackwell's  Island, 
of  which  the  defendant  was  warden.  At  a  court  of  Oyer  and  Ter- 
miner, held  in  and  for  the  city  and  county  of  New  York,  the  relator 
was  tried  upon  an  indictment  containing  220  separate  and  distinct 
counts,  each  charging  a  misdemeanor,  to  wit,  a  neglect  of  duty  as 
one  of  the  board  of  auditors  of  claims  against  the  county  of  New 
York.    He  was  found  guilty  upon  204  of  the  counts. 

Upon  twelve  of  the  counts  the  court  sentenced  him  to  twelve  suc- 
cessive terms  of  imprisonment  of  one  year  each,  and  to  fines  of  $250 
each;  upon  other  counts  to  additional  fines,  amounting  in  all  to 
$12,500. 

The  maximum  punishment  fixed  by  the  statute  under  which  he 
was  indicted  (2  R.  S.  p.  696,  §  38;  p.  697,  §  40)  is  one  year's  im- 
prisonment and  a  fine  of  $250.  By  virtue  of  a  commitment  issued 
upon  said  judgment,  the  relator  was  confined  in  said  penitentiary, 
as  aforesaid,  and  having  been  there  imprisoned  for  one  year,  and 
having  paid  one  fine  of  $250,  he  made  application  for  a  writ  of 
habeas  corpus  to  inquire  into  the  legality  of  the  continued  imprison- 
ment. 

Allen,  J.  The  question  of  gravest  import,  and  which  is  to  be  con- 
sidered in  limine,  as  that  upon  which  the  jurisdiction  of  the  court 
to  consider  the  other  question  presented  depends,  relates  to  the  office 


684  THE  HABEAS  CORPUS. 

and  effect  of  the  writ  of  habeas  corpus,  under  our  system  of  juris- 
prudence, and  the  statutes  of  the  State  regulating  proceedings 
under  it.  Eelief  from  illegal  imprisonment  by  means  of  this  reme- 
dial writ  is  not  the  creature  of  any  statute.  The  history  of  the  writ 
is  lost  in  antiquity.  It  was  in  use  before  magna  charta,  and  came  to 
us  as  a  part  of  our  inheritance  from  the  mother  country,  and  exists 
as  a  part  of  the  common  law  of  the  state.  It  is  intended  and  well 
adapted  to  effect  the  great  object  secured  in  England  by  magna 
charta,  and  made  a  part  of  our  constitution,  that  no  person  shall  be 
deprived  of  his  liberty  "without  due  process  of  law."  Const., 
art.  1,  §  6. 

The  Revised  Statutes  regulate  the  exercise  of  this  jurisdiction, 
as  well  by  courts  as  magistrates,  embracing  not  only  cases  in  vaca- 
tion, but  in  term  time.  2  R.  S.  563;  5  id.  (Edm.  ed.)  511,  re- 
visers' notes.  This  writ  cannot  be  abrogated  or  its  eflBciency  cur- 
tailed, by  legislative  action.  Cases  within  the  relief  afforded  by  it 
at  common  law  cannot,  until  the  people  voluntarily  surrender  the 
right  to  this,  the  greatest  of  all  writs,  by  an  amendment  of  the  or- 
ganic law,  be  placed  fceyond  its  reach  and  remedial  action.  The 
privileges  of  the  writ  cannot  be  even  temporarily  suspended,  except 
for  the  safety  of  the  state,  in  cases  of  rebellion  or  invasion.  Const., 
art.  1;  §  4. 

The  remedy  against  illegal  imprisonment  afforded  by  this  writ, 
as  it  was  known  and  used  at  common  law,  is  placed  beyond  the  pale 
of  legislative  discretion,  except  that  it  may  be  suspended  when 
public  safety  requires,  in  either  of  the  two  emergencies  named  in 
the  constitution.  This  provision  of  the  constitution  is  a  transcript 
of  the  former  constitution  of  the  state,  and  it  cannot  be  contended 
that  the  framers  of  the  Revised  Statutes,  by  which  the  practice  of 
the  courts  in  term  time  was  placed  under  the  same  regulations  as 
that  which  had  from  the  first  been  prescribed  for  the  officers  upon 
whom  power  had  been  conferred  from  time  to  time  by  statute,  de- 
signed to  interfere  with  the  principles  governing  the  exercise  of  the 
jurisdiction,  or  lessen  the  value,  the  efficiency  or  importance  of  the 
writ  itself,  which,  in  respect  of  the  jurisdiction  of  the  Supreme 
Court  and  Court  of  Chancery,  was  beyond  the  reach  of  legislation. 

Persons  committed  or  detained  by  virtue  of  the  final  judgment  or 
decree  of  any  competent  tribunal  of  civil  or  crimintil  jurisdiction, 
or  by  virtue  of  any  execution  issued  upon  such  judgment  or  decree, 
are  expressly  excluded  from  the  benefit  of  the  act.    2  R.  S.  563, 


PEOPLE  EX  REL.  TWEED  V.  LISCOMB.  685 

§  22.  And  if,  upon  the  return  of  the  writ,  it  appears  that  the  party 
is  detained  in  custody  by  virtue  of  such  judgment  or  decree,  or  any 
execution  issued  thereon,  he  must  be  remanded.  Id.  567,  §  40.  Such 
persons  are  deprived  of  their  liberty  by  ' '  due  process  of  law, ' '  and 
are  not  within  the  purview  of  the  constitution,  or  the  purposes  of 
the  writ.  To  bar  the  applicant  from  a  discharge  from  arrest  by 
virtue  of  a  judgment  or  decree,  or  an  execution  thereon,  the  court 
in  which  the  judgment  or  decree  is  given  must  have  had  jurisdiction 
to  render  such  judgment.  The  tribunal  must  be  competent  to  render 
the  judgment  under  some  circumstances. 

When  a  prisoner  is  held  under  a  judgment  of  a  court  made  with- 
out authority  of  law,  the  proper  tribunal  will,  upon  habeas  corpus, 
look  into  the  record  so  far  as  to  ascertain  this  fact;  and  if  it  be 
found  to  be  so,  will  discharge  the  prisoner.  Ex  parte  Lange,  18 
Wall.  163,  The  court  say  it  is  no  answer  to  say  that  the  court  had 
jurisdiction  of  the  person  of  the  prisoner,  and  of  the  offence,  under 
the  statute.  It  by  no  means  follows  that  these  two  facts  make  valid, 
however  erroneous  it  may  be,  any  judgment  the  court  may  render 
in  such  a  case 

I  see  no  escape  from  the  conclusion  that  the  jurisdiction  of  the 
court  of  Oyer  and  Terminer  to  give  the  judgment  or  judgments 
which  appear  upon  the  record  returned  to  this  court,  and  by  virtue 
of  which  the  relator  is  held,  was  a  proper  subject  of  inquiry  upon 
the  return  of  the  writ  of  habeas  corpus.  It  was  the  only  fact  which 
the  prisoner  could  allege,  for,  whatever  errors  the  court  may  have 
committed  prior  to  the  judgment,  if  the  court  had  power  to  make 
the  judgment,  they  can  only  be  reviewed  by  a  writ  of  error.  In 
other  words,  upon  the  writ  of  habeas  corpus,  the  court  could  not  go 
behind  the  judgment,  but  upon  the  whole  record,  the  question  was 
whether  the  judgment  was  warranted  by  law,  and  within  the  juris- 
diction of  the  court. 

The  indictment  in  this  ease  is  an  anomaly,  and  is  probably  with- 
out precedent,  but  it  may  have  been  justified  by  the  peculiar  cir- 
cumstances of  the  case.  But  if  a  statute  was  necessary  in  England 
to  the  joinder  of  three  or  four  offences  in  one  indictment  in  sev- 
eral counts,  and  to  proceed  thereon  in  respect  to  any  or  all  of  them, 
it  can  hardly  be  claimed  that  the  common  law  allows  200  separate 
offences  to  be  charged,  and  a  trial  and  conviction  and  separate  pun- 
ishments for  fifty  distinct  offences.  No  precedent  has  been  found 
for  the  practice.    The  justification  is  to  be  found,  probably,  in  the 


686  THE  HABEAS  CORPUS. 

fact  that  great  wrongs  had  been  perpetrated,  and  the  punishment 
as  for  a  single  misdemeanor  was  deemed  entirely  inadequate  to  the 
offence,  and  the  public  mind  was  greatly  excited,  and  called  for 
what  would  be  called  an  approximate  vindication  of  the  law,  and  a 
somewhat  appropriate  punishment  for  the  offender.  I  would  not 
be  thought  to  differ  with  the  trial  court  in  respect  to  the  character 
of  the  offence,  or  of  the  inadequacy  of  the  statutory  punishment 
upon  a  single  conviction.  The  remedy  was  by  several  indictments, 
if  the  offences  were  distinct.  But  the  courts  can  only  administer  the 
laws  as  they  find  them,  and  it  is  far  better  that  the  most  guilty 
should  escape,  than  that  the  law  should  be  judicially  disregarded  or 
violated.  A  greater  public  wrong  would  be  committed,  one  more 
lasting  in  its  injurious  effects,  and  dangerous  to  civil  liberty  and 
the  sacredness  of  the  law,  by  punishing  a  man  against  and  without 
law,  but  under  color  of  law  and  a  judicial  proceeding,  than  can 
result  from  the  escape  of  the  greatest  offender,  or  the  commission  of 
the  highest  individual  crimes  against  law. 

Neither  the  cause  of  justice  or  of  true  reform  can  be  advanced  by 
illegal  and  void  acts,  or  doubtful  experiments  by  courts  of  justice, 
in  any  form,  or  to  any  extent.  From  some  expressions  of  judges, 
and  the  remarks  of  text-writers,  there  was  some  color  for  the  idea 
that  several  distinct  offences  could  be  tried  at  the  same  time.  But 
there  was  no  real  or  true  warrant  in  this  state  for  several  and  dis- 
tinct judgments  upon  a  single  indictment  in  the  law,  and  for  that 
reason  the  prisoner  should  have  been  discharged  upon  the  expiration 
of  the  imprisonment  for  one  year  and  the  payment  of  a  fine  of  $250. 

The  judgment  and  orders  of  the  Supreme  Court  and  of  the  Oyer 
and  Terminer  must  be  reversed,  and  the  prisoner  discharged. 

See,  also.  In  the  Matter  of  Ah  Tou,  88  Cal.  99,  supra,  where  the  peti- 
tioner was  on  habeas  corpus  released  because  the  term  of  imprisonment 
Imposed  was  longer  than  was  by  law  proper;  and  Ix>ngenberg  v.  Decker, 
131  Ind.  471,  and  Ex  parte  Lehman,  60  Miss.  967,  supra,  where  petitioners 
were  released  from  imprisonment  for  contempt  because  the  orders  com- 
mitting them  for  contempt  were  in  excess  of  the  jurisdiction  of  the  au- 
thorities making  VLem. 


IN  RE  ROBERT  M.  MARTIN.  687 

IV.    Committing  Magistrateb. 

IN  RE  ROBERT  M.  MARTIN. 

Circuit  Court  of  the  United  States.    February,  1866. 
5  Blatch.  (C.  C.  B.)  303. 

This  was  a  writ  of  habeas  corpus  directed  to  the  Marshal  of  the 
Southern  District  of  New  York,  commanding  him  to  bring  the  body 
of  Robert  M.  Martin  before  the  court.  As  the  petition  for  the  writ 
alleged  that  the  prisoner  was  detained  in  custody  under  a  warrant 
of  commitment  issued  by  a  United  States  Commissioner,  a  writ  of 
certiorari,  also,  was  issued  by  the  court  to  the  commissioner,  direct- 
ing him  to  send  up  the  proceedings  and  evidence  upon  which  such 
commitment  was  founded. 

Shipman,  J.  The  power  of  this  court  to  grant  the  writ  of  habeas 
corpus  is  not  denied,  and,  therefore,  need  not  now  be  dwelt  upon. 
Neither  shall  I  discuss  at  much  length  its  power  to  grant  the  writ 
of  certiorari,  as  ancillary  to  the  former  writ.  The  courts  of  the 
United  States  being  courts  of  limited,  though  not  of  inferior  juris- 
diction, their  powers  must  be  sought  for  in  the  acts  of  Congress. 
The  14th  section  of  the  Judiciary  Act,  of  September  24th,  1789 
(1  TJ.  8.  Stat,  at  Large  81),  provides,  "that  all  the  before-men- 
tioned courts  of  the  United  States  shall  have  power  to  issue  writs 
of  scire  facias,  habeas  corpus,  and  all  other  writs  not  specially  pro- 
vided for  by  statute,  which  may  be  necessary  for  the  exercise  of 
their  respective  jurisdictions,  and  agreeable  to  the  principles  and 
usages  of  law.  And  that  either  of  the  justices  of  the  Supreme 
Court,  as  well  as  judges  of  the  District  Courts,  shall  have  power  to 
grant  writs  of  habeas  corpus,  for  the  purpose  of  an  inquiry  into  the 
cause  of  commitment.  Provided,  that  writs  of  habeas  corpus  shall 
in  no  case  extend  to  prisoners  in  gaol,  unless  where  they  are  in  cus- 
tody under  or  by  color  of  the  authority  of  the  United  States,  or  are 
committed  for  trial  before  some  court  of  the  same,  or  are  necessary 
to  be  brought  into  court  to  testify. ' '  Under  the  authority  conferred 
by  this  act,  the  writ  of  habeas  corpus  has  been  repeatedly  granted 
by  the  courts  of  the  United  States,  and  by  the  judges  thereof.  And, 
although  the  power  to  issue  the  writ  of  certiorari  is  not  conferred 
by  name,  it  is  no  doubt  included  under  the  general  term,  "all  other 


688  THE  HABEAS  CORPUS. 

writs  not  specially  provided  for  by  statute,  which  may  be  necessary 
for  the  exercise  of  their  respective  jurisdictions,  and  agreeable  to 
the  principles  and  usages  of  law."  Accordingly,  the  Supreme 
Court  of  the  United  States  in  Ex  parte  Burford,  3  Cranch  448,  and 
in  the  case  of  Ex  parte  Bollmam,,  4  Cranch  75,  issued  the  writ  of 
certiorari,  as  well  as  that  of  habeas  corpus.  These  precedents  would 
be  quite  sufficient  to  warrant  this  court  in  the  exercise  of  its  power 
to  issue  the  former  writ,  for,  jurisdiction  in  cases  of  habeas  corpus 
is  conferred  upon  the  Supreme  and  Circuit  Courts  by  the  same 
words  of  the  act,  as  well  as  the  power  to  issue  all  other  writs  which 
may  be  necessary  for  the  exercise  of  jurisdiction.  The  writ  of  cer- 
tiorari has  always  been  considered,  in  appropriate  cases,  as  ancillary 
to  that  of  habeas  corpus,  and  has  long  been  used  by  the  courts  of 
England  and  this  country,  as  a  means  of  rendering  their  jurisdic- 
tion under  the  latter  writ  effective.  It  is  said  in  Bacon 's  Abridge- 
ment, (Hab.  Cor.  B.  3) :  "As  the  certiorari  alone  removes  not  the 
body,  so  the  Jmbeas  corpus  alone  removes  not  the  record  itself,  but 
only  the  prisoner  with  the  cause  of  his  commitment ;  and,  therefore, 
although,  upon  the  habeas  corpus,  and  the  return  thereof,  the  court 
can  judge  of  the  sufficiency  or  insufficiency  of  the  return  and  com- 
mitment, and  bail  or  discharge  or  remand  the  prisoner,  as  the  case 
appears  upon  the  return,  yet  they  cannot,  upon  the  bare  return  of 
the  habeas  corpus,  give  any  judgment,  or  proceed  upon  the  record' 
of  the  indictment,  order,  or  judgment,  without  the  record  itself  be 
removed  by  certiorari." 

The  next  question  is — ^what  proceedings  of  the  committing  magis- 
trate is  the  certiorari  to  operate  upon  and  remove  into  this  court  T 
In  determining  this  question,  it  is  proper  to  notice,  in  the  outset, 
the  functions  exercised  by  the  conunissioner  in  committing  a  pris- 
oner to  await  the  action  of  the  grand  jury.  In  this  respect  he  ex- 
ercises the  powers  common  to  all  ordinary  committing  magistrates. 
If  he  finds  probable  cause  to  hold  the  party  for  trial,  he  commits 
him ;  if  not,  he  discharges  him.  In  neither  case  is  his  action  final ; 
or  a  bar  to  further  proceedings.  If  the  prisoner  is  discharged,  he 
may  be  again  arrested,  and,  on  sufficient  evidence,  may  be  com- 
mitted. If  he  is  committed,  he  may  apply  to  the  court  to  reduce 
his  bail,  or  the  prosecuting  officer  may  apply  to  have  it  increased, 
or  to  discharge  him  altogether.  In  none  of  these  proceedings  of  the 
commissioner  are  his  orders  in  the  nature  of  a  final  judgment  of  a 
court  of  record ;  and  it  is  a  common  practice  for  courts,  in  England 
and  in  this  country,  to  which  a  party  is  committed  for  trial,  to  re- 


IN  RE  ROBERT  M.  MARTIN.  689 

vise  just  such  orders  as  the  commissioner  has  made  in  the  present 
case.  This  court  has  repeatedly  increased  and  diminished  bail  fixed 
by  commissioners,  and  its  authority  has  never  been  questioned. 
Now,  in  order  that  this  court  may  exercise  intelligently  its  un- 
doubted authority  over  such  matters,  it  must  be  able  to  go  behind 
the  mere  formal  order  of  commitment.  In  order  to  fix  the  amount 
of  bail,  it  must  be  possessed  of  sufficient  evidence  as  to  what  are  the 
peculiarities  of  the  offence  committed — whether  it  is  a  merely  tech- 
nical breach  of  law,  or  one  attended  by  circumstances  of  peculiar 
aggravation  or  atrocity. 

The  importance  of  this  power  of  the  court,  to  look  into  the  evi- 
dence as  far  as  may  be  necessary,  in  order  to  decide  whether  it  is 
proper  or  not  to  hold  a  prisoner  in  confinement,  will  be  clearly  seen 
on  examining  the  condition  of  things  if  no  such  power  existed.  One 
of  two  results  would  follow.  Either  the  prisoner  would  be  kept  in 
confinement  just  as  long  as  the  prosecution  might  see  fit  to  hold  him, 
or  the  court  would  be  compelled  to  make  a  mere  arbitrary  order 
limiting  the  time  within  which  he  should  be  indicted  or  discharged. 
It  often  happens  that  prisoners  are  brought  into  a  district  for  trial, 
long  before  the  necessary  evidence  can  be  obtained  for  submission 
to  the  grand  jury.  This  happens  more  frequently  in  the  case  of 
crimes  committed  on  shipboard,  in  remote  parts  of  the  world ;  but 
it  may  and  does  occur  in  other  instances.  In  such  cases,  the  court 
would  not,  unless  compelled  to  do  so,  arbitrarily  limit  the  time 
within  which  an  indictment  should  be  found  or  the  prisoner  be  re- 
leased. It  would  be  all-important  that  the  court  should  look  into 
the  evidence  upon  which  the  prisoner  was  eonunitted,  that  it  might 
determine  whether  or  not  the  circumstances  surrounding  the  com- 
mission of  the  alleged  crime  were  such  as  to  warrant  his  further 
detention  in  the  absence  of  an  indictment.  The  extent  of  a  justifi- 
able delay  would  be  different  in  different  cases,  depending  upon  the 
evidence.  To  put  an  order  upon  the  District  Attorney,  that  he 
should  have  his  indictment  in  court  by  a  given  day,  or  that  the 
prisoner  be  discharged,  without  looking  into  the  evidence,  would 
be  a  blind  exercise  of  power,  little  meriting  the  term  judicial.  This 
the  court  would  be  compelled  to  do,  unless  it  had  control  over,  and 
the  power  to  examine  into,  the  evidence,  or  else  leave  the  prisoner 
virtually  in  the  hands  of  the  prosecutor  and  to  such  term  of  con- 
finement as  he  might  think  proper. 

There  is  another  important  consideration  which  it  is  proper  to 
44 


690  THE  HABEAS  CORPUS. 

advert  to.  As  this  court  has  the  power  to  issue  writs  of  habects  cor- 
pus, for  the  purpose  of  inquiring  into  the  cause  of  commitment 
(1  TJ.  8.  Stat,  at  Large,  81,  §  14;  ^x  parte  Watkins,  3  Peters,  193, 
201),  it  would  be  compelled  in  the  exercise  of  this  power,  where  the 
warrant  of  commitment  was  irregular  and  void  on  its  face,  to  dis- 
charge from  arrest,  unless  it  could  go  behind  the  warrant  and  ex- 
amine into  the  evidence  upon  which  it  was  founded.  This,  as  I 
have  already  shown,  would  sometimes  be  impracticable,  unless  the 
court  could  resort  to  the  evidence  upon  which  the  commissioner 
acted,  and  which  might  be  within  reach  of  the  court,  on  the  return 
to  the  habeas  corpus,  only  through  the  commissioner 's  minutes  or  his 
own  testimony.  For  these  reasons,  the  commissioner  who  committed 
the  prisoner  in  this  case  must  answer  the  certiorari,  by  producing 
the  evidence  taken  before  him.  As  this  evidence  was,  I  suppose, 
substantially  reduced  to  writing  by  him  on  the  hearing,  it  will  be 
sufficient  to  produce  his  minutes  thereof,  and  the  affidavit  upon 
which  the  original  warrant  of  arrest  was  issued.  The  warrant  itself 
and  the  order  of  commitment  are  already  before  the  court 

To  avoid  all  misconception,  it  may  be  well  to  remark,  that  the 
principles  here  laid  down,  have  no  necessary  relation  to  the  powers 
conferred  upon  commissioners  under  the  laws  touching  the  execu- 
tion of  extradition  treaties. 

The  return  to  the  certiorari  having  been  made  in  conformity  to 
the  above  decision,  and  the  question  of  the  further  detention  or  dis- 
charge of  the  prisoner  having  been  heard,  the  court  proceeded  to 
render  the  following  decision : 

Shipman,  J.  The  evidence  and  proceedings  upon  which  the  pris- 
oner, Robert  H.  Martin,  was  committed  to  await  the  action  of  the 
grand  jury  in  this  court,  have  been  carefully  examined  and  consid- 
ered by  the  court.  The  question  now  to  be  determined  is,  whether 
he  shall  be  remanded  or  discharged. 

It  follows,  from  these  views,  that  there  was  no  sufficient  evidence 
to  warrant  the  commitment  of  the  prisoner  for  trial  in  this  district. 
He  must,  therefore,  be  discharged  from  custody  under  this  warrant 
or  order  of  commitment,  and  a  proper  order  will  be  entered  to  that 
effect. 

After  Indictment  the  habeas  corpus  court  will  not  examine  into  the 
guilt  or  Innocence  of  the  prisoner.  People  v.  Rulloff,  18  How.  Pr.  (N.  Y.) 
98. 


IN  RB  ROBERT  M.  MARTIN.  691 

V.    Courts  Having  Jurisdiction. 

EX  PARTE  BARRY. 

Supreme  Court  of  the  Vnited  States.    January,  1844. 
2  How.  (U.  S.)  65. 

Mr.  Justice  Story  delivered  the  opinion  of  the  court. 

This  is  a  petition  filed  in  this  court  for  a  writ  of  habeas  corpus  to 
be  awarded  to  bring  up  the  body  of  the  infant  daughter  of  the  peti- 
tioner, alleged  to  be  now  unlawfully  debarred  from  him,  and  in  the 
custody  of  Mrs.  Mary  Mercein,  the  grandmother  of  the  said  child, 
in  the  district  of  New  York.  The  petitioner  is  a  subject  of  the  queen 
of  Great  Britain;  and  the  application  in  eifect  seeks  the  exercise 
of  original  jurisdiction  in  the  matter  upon  which  it  is  founded.  No 
application  has  been  made  to  the  Circuit  Court  of  the  United  States 
for  the  district  of  New  York,  for  relief  in  the  premises,  either  by 
writ  of  habeas  corpus  or  de  homine  replegiando,  or  otherwise ;  and, 
of  course,  no  case  is  presented  for  the  exercise  of  the  appellate  juris- 
diction of  this  court  by  any  review  of  the  final  decision  and  award 
of  the  Circuit  Court  upon  any  such  proceedings.  Nor  is  any  case 
presented  for  the  exercise  of  the  appellate  jurisdiction  of  this  court 
upon  a  writ  of  error  to  the  decision  of  the  highest  court  of  law  and 
equity  in  the  state  of  New  York,  upon  the  ground  of  any  question 
arising  under  the  25th  section  of  the  Judiciary  act  of  1789,  ch.  20. 

The  case,  then,  is  one  avowedly  and  nakedly  for  the  exercise  of 
original  jurisdiction  by  this  court.  Now  the  Constitution  of  the 
United  States  has  not  confided  any  original  jurisdiction  to  this 
court,  except  **in  all  eases  affecting  ambassadors,  other  public  min- 
isters and  consuls,  and  those  in  which  a  State  shall  be  a  party." 
The  present  case  falls  not  within  either  predicament.  It  is  the  case 
of  a  private  individual  who  is  an  alien  seeking  redress  for  a  sup- 
posed wrong  done  him  by  another  private  individual,  who  is  a  citi- 
zen of  New  York.  It  is  plain,  therefore,  that  this  court  has  no 
original  jurisdiction  to  entertain  the  present  petition ;  and  we  can- 
not issue  any  writ  of  habeas  corpus,  except  when  it  is  necessary  for 
the  exercise  of  the  jurisdiction,  original  or  appellate,  given  to  it  by 
the  Constitution  or  laws  of  the  United  States.  Without,  therefore, 
entering  into  the  merits  of  the  present  application,  we  are  compelled 
by  our  duty,  to  dismiss  the  petition,  leaving  the  petitioner  to  seek 
redress  in  such  other  tribunal  of  the  United  States  as  may  be  en- 


692  THE  HABEAS  CX)RPUS. 

titled  to  grant  it.  If  the  petitioner  has  any  title  to  redress  in  those 
tribunals,  the  vacancy  in  the  office  of  the  judge  of  this  court  as- 
signed to  that  circuit  and  district  creates  no  legal  obstruction  to  the 
pursuit  thereof. 

But  a  court  possessing  appellate  jurisdiction  only  will  issue  the  habeas 
corpus  to  relieve  one  from  imprisonment,  who  is  confined  under  a  Judg- 
ment of  a  court  which  is  alleged  to  be  in  excess  of  its  Jurisdiction,  be- 
cause e.  g.  a  conviction  is  had  under  an  unconstitutional  law.  Ex  parte 
Siebold,  100  U.  S.  371,  supra. 


IN  RE  NEAGLE. 


Supreme  Court  of  the  United  States.    October,  1889. 
135  U.  S.  1.  x^ 

Mr.  Justice  Miller,  after  stating  the  case, deliv- 
ered the  opinion  of  the  court. 

The  enactments  now  found  in  the  Revised  Statutes  of  the  United 
States  on  the  subject  of  the  writ  of  habeas  corpus  are  the  result  of 
a4ong  course  of  legislation  forced  upon  Congress  by  the  attempts  of 
the  States  of  the  Union  to  exercise  the  power  of  imprisonment  over 
officers  and  other  persons  asserting  rights  under  the  federal  govern- 
ment or  foreign  governments,  which  the  states  denied.  The  original 
act  of  Congress  on  the  subject  of  the  writ  of  habeas  corpus,  by  its 
14th  section,  authorized  the  judges  and  courts  of  the  United  States, 
in  the  case  of  prisoners  in  jail  or  in  custody  under  or  by  color  of 
the  authority  of  the  United  States,  or  committed  for  trial  before 
some  court  of  the  same,  or  when  necessary  to  be  brought  into  court 
to  testify,  to  issue  the  writ,  and  the  judge  or  court  before  whom  they 
were  brought  was  directed  to  make  inquiry  into  the  cause  of  com- 
mitment. 1  Stat.  81,  c.  20,  §  14.  This  did  not  present  the  ques- 
tion, or,  at  least,  it  gave  rise  to  no  question  which  came  before  the 
courts,  as  to  releasing  by  this  writ  parties  held  in  custody  under  the 
laws  of  the  states.  But  when,  during  the  controversy  growing  out 
of  the  nullification  laws  of  South  Carolina,  officers  of  the  United 
States  were*  arrested  and  imprisoned  for  the  performance  of  their 
duties  in  collecting  the  revenue  of  the  United  States  in  that  State, 
and  held  by  the  state  authorities,  it  became  necessary  for  the  Con- 


IN  RE  NEAGLE.  693 

gress  of  the  United  States  to  take  some  action  for  their  relief.  Ac- 
cordingly the  act  of  Congress  of  March  2, 1833, 4  Stat.  634,  c.  57,  §  7, 
among  other  remedies  for  such  condition  of  affairs,  provided  by 
the  7th  section,  that  the  federal  judges  should  grant  writs  of  habeas 
corpus  in  all  cases  of  a  prisoner  in  jail  or  confinement,  where  he 
should  be  committed  or  confined  on  or  by  any  authority  or  law, 
for  any  act  done,  or  omitted  to  be  done,  in  pursuance  of  a  law  of 
the  United  States,  or  any  order,  process  or  decree  of  any  judge  or 
court  thereof. 

The  next  extension  of  the  circumstances  on  which  a  writ  of  habeas 
corpus  might  issue  by  the  federal  judges  arose  out  of  the  celebrated 
McLeod  Case,  in  which  McLeod,  charged  with  murder  in  a  state 
court  of  New  York,  had  pleaded  that  he  was  a  British  subject,  and 
that  what  he  had  done  was  under  and  by  the  authority  of  his  gov- 
ernment, and  should  be  a  matter  of  international  adjustment,  and 
that  he  was  not  subject  to  be  tried  by  a  court  of  New  York  under 
the  laws  of  that  State.  The  federal  government  acknowledged  the 
force  of  this  reasoning,  and  undertook  to  obtain  from  the  govern- 
ment of  the  State  of  New  York  the  release  of  the  prisoner,  but 
failed.  He  was,  however,  tried  and  acquitted,  and  afterwards  re- 
leased by  the  State  of  New  York.  This  led  to  an  extension  of  the 
powers  of  the  federal  judges  under  the  writ  of  habeas  corpus,  by 
the  act  of  Aug.  29, 1842,  5  Stat.  539,  c.  257,  entitled  **An  act  to  pro- 
vide further  remedial  justice  in  the  courts  of  the  United  States," 
It  conferred  upon  them  the  power  to  issue  a  writ  of  habeas  corpus 
in  all  cases  where  the  prisoner  claimed  that  the  act  for  which  he  was 
held  in  custody  was  done  under  the  sanction  of  any  foreign  power, 
and  where  the  validity  and  effect  of  this  plea  depended  upon  the 
law  of  nations.  In  advocating  the  bill  which  afterwards  became  a 
law,  on  this  subject,  Senator  Berrien,  who  introduced  it  into  the 
Senate,  observed:  "The  object  was  to  allow  a  foreigner,  prose- 
cuted in  one  of  the  States  of  the  Union  for  an  offence  committed  in 
that  State,  but  which  he  pleads  has  been  committed  under  authority 
of  his  own  sovereign  or  the  authority  of  the  law  of  nations,  to  be 
brought  up  on  that  issue  before  the  only  competent  judicial  power 
to  decide  upon  matters  involved  in  foreign  relations  or  the  law  of 
nations.  The  plea  must  show  that  it  has  reference  to  the  laws  or 
treaties  of  the  United  States  or  the  law  of  nations,  and  showing  this, 
the  writ  of  habeas  corpus  is  awarded  to  try  that  issue.  If  it  shall 
appear  that  the  accused  has  a  bar  on  the  plea  alleged,  it  is  right  and 
proper  that  he  should  not  be  delayed  in  prison  awaiting  the  pro- 
ceedings of  the  State  jurisdiction  on  the  preliminary  issue  of  his 


694  THE  HABEAS  CORPUS. 

plea  at  bar.  If  satisfied  of  the  existence  in  fact  and  validity  in  law 
of  the  bar,  the  federal  jurisdiction  will  have  the  power  of  admini»- 
tering  prompt  relief. ' '  No  more  forcible  statement  of  the  principle 
on  which  the  law  of  the  case  now  before  us  stands  can  be  made. 

The  next  extension  of  the  powers  of  the  court  under  the  writ  of 
habeas  corpus  was  the  act  of  February  5,  1867,  14  Stat,  385,  c.  28, 
and  this  contains  the  broad  ground  of  the  present  Revised  Statutes, 
under  which  the  relief  is  sought  in  the  case  before  us,  and  includes 
all  cases  of  restraint  of  liberty  in  violation  of  the  Constitution  or  a 
law  or  treaty  of  the  United  States,  and  declares  that ' '  the  said  court 
or  judge  shall  proceed  in  a  summary  way  to  determine  the  facts  of 
the  case,  by  hearing  testimony  and  the  arguments  of  the  parties 
interested,  and  if  it  shall  appear  that  the  petitioner  is  deprived  of 
his  or  her  liberty  in  contravention  of  the  Constitution  or  laws  of 
the  United  States,  he  or  she  shall  forthwith  be  discharged  and  set 
at  liberty." 


See  also  Boske  v.  Comingore,  177  U.  S.  459,  and  Tick  Wo  v.  Hopkins, 
118  U.  S.  356,  for  examples  of  the  release  by  a  United  States  court  of  one 
held  under  state  authority. 


ABLEMAN  V.  BOOTH. 

UNITED  STATES  V.  BOOTH. 

Supreme  Court  of  the  United  States.    December,  1858. 
21  How.  (V.  S.)  506. 

These  two  cases  were  brought  up  from  the  Supreme  Court  of  the 
State  of  Wisconsin  by  a  writ  of  error  issued  under  the  25th  section 
of  the  judiciary  act. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Chief  Justice  Taney^  delivered  the  opinion  of  the  court. 

The  plaintiif  in  error  in  the  first  of  these  cases  is  the  marshal  of 
the  United  States  for  the  district  of  Wisconsin,  and  the  two  cases 
have  arisen  out  of  the  same  transaction,  and  depend,  to  some  ex- 
tent, upon  the  same  principles.  On  that  account,  they  have  been 
argued  and  considered  together. 


ABLEMAN  V.  BOOTH.  695 

It  will  be  seen  from  the statement  of  facts  that  a 

Judge  of  the  Supreme  Court  of  the  state  of  Wisconsin  in  the  first 
of  these  cases,  claimed  and  exercised  the  right  to  supervise  and 
annul  the  proceedings  of  a  commissioner  of  the  United  States,  and 
to  discharge  a  prisoner,  who  had  been  committed  by  the  commis- 
sioner for  an  offence  against  the  laws  of  this  government,  and  that 
this  exercise  or  power  by  the  judge  was  afterwards  sanctioned  and 
affirmed  by  the  Supreme  Court  of  the  State. 

In  the  second  case,  the  state  court  has  gone  a  step  further,  and 
claimed  and  exercised  jurisdiction  over  the  proceedings  and  judg- 
ment of  a  District  Court  of  the  United  States,  and  upon  a  sunmiary 
and  collateral  proceeding,  by  habeas  corpus,  has  set  aside  and  an- 
nulled its  judgment,  and  discharged  a  prisoner  who  had  been  tried 
and  found  guilty  of  an  offence  against  the  laws  of  the  United  States, 
and  sentenced  to  imprisonment  by  the  District  Court. 

And  it  further  appears  that  the  state  courts  have  not  only  claimed 
and  exercised  this  jurisdiction,  but  have  also  determined  that  their 
decision  is  final  and  conclusive  upon  all  the  courts  of  the  United 
States,  and  ordered  their  clerk  to  disregard  and  refuse  obedience  to 
the  writ  of  error  issued  by  this  court,  pursuant  to  the  act  of  Con- 
gress of  1789,  to  bring  here  for  examination  and  revision  the  judg- 
ment of  the  state  court. 

These  propositions  are  new  in  the  jurisprudence  of  the  United 
States,  as  well  as  of  the  States,  and  the  supremacy  of  the  state 
courts  over  the  courts  of  the  United  States,  in  cases  arising  under 
the  Constitution  and  laws  of  the  United  States,  is  now  for  the  first 
time  asserted  and  acted  upon  in  the  Supreme  Court  of  a  State. 

We  do  not  question  the  authority  of  a  State  court,  or  judge,  who 
is  authorized  by  the  laws  of  the  State  to  issue  the  writ  of  habeas 
corpus,  to  issue  it  in  any  case  where  the  party  is  imprisoned  within 
its  territorial  limits,  provided  it  does  not  appear,  when  the  applica- 
tion is  made,  that  the  person  imprisoned  is  in  custody  under  the 
authority  of  the  United  States.  The  court  or  judge  has  a  right  to 
inquire,  in  this  mode  of  proceeding  for  what  cause  and  by  what 
authority  the  prisoner  is  confined  within  the  territorial  limits  of  the 
state's  sovereignty.  And  it  is  the  duty  of  the  marshal,  or  other 
person  having  the  custody  of  the  prisoner,  to  make  known  to  the 
judge  or  court,  by  a  proper  return,  the  authority  by  which  he  holds 
him  in  custody.  This  right  to  inquire  by  process  of  habeas  corpus, 
and  the  duty  of  the  officer  to  make  a  return,  grows,  necessarily,  out 
of  the  complex  character  of  our  government,  and  the  existence  of 


696  THE  HABEAS  CORPUS. 

two  distinct  and  separate  sovereignties  within  the  same  territorial 
space,  each  of  them  restricted  in  its  powers,  and  each  within  its 
sphere  of  action,  prescribed  by  the  Constitution  of  the  United 
States,  independent  of  the  other.  But,  after  the  return  is  made, 
and  the  State  judge  or  court  judicially  apprized  that  the  party  is  in 
custody  under  the  authority  of  the  United  States,  they  can  proceed 
no  further.  They  then  know  that  the  prisoner  i»  within  the  do- 
minion and  jurisdiction  of  another  government,  and  that  neither 
the  writ  of  habeas  corpus,  nor  any  other  process  issued  under  state 
authority,  can  pass  over  the  line  of  division  between  the  two  sover- 
eignties. He  is  then  within  the  dominion  and  exclusive  jurisdiction 
of  the  United  States.  If  he  has  committed  an  offence  against  their 
laws,  their  tribunals  alone  can  punish  him.  If  he  is  wrongfully 
imprisoned,  their  judicial  tribunals  can  release  him  and  afford  him 
redress.  And  although,  as  we  have  said,  it  is  the  duty  of  the  marshal 
or  other  person  holding  him,  to  make  known,  by  a  proper  return, 
the  authority  under  which  he  detains  him,  it  is  at  the  same  time  im- 
peratively his  duty  to  obey  the  process  of  the  United  States,  to 
hold  the  prisoner  in  custody  under  it,  and  to  refuse  obedience 
to  the  mandate  or  process  of  any  other  government.  And  conse- 
quently it  is  his  duty  not  to  take  the  prisoner,  nor  suffer  him  to  be 
taken,  before  a  State  judge  or  court  upon  a  habeas  corpus  issued 
under  state  authority.  No  state  judge  or  court,  after  they  are  ju- 
dicially informed  that  the  party  is  imprisoned  under  the  authority 
of  the  United  States,  has  any  right  to  interfere  with  him,  or  to  re- 
quire him  to  be  brought  before  them.  And  if  the  authority  of  a 
state,  in  the  form  of  judicial  process  or  otherwise,  should  attempt  to 
control  the  marshal  or  other  authorized  officer  or  agent  of  the 
United  States,  in  any  respect,  in  the  custody  of  his  prisoner,  it 
would  be  his  duty  to  resist  it,  and  to  call  to  his  aid  any  force  that 
might  be  necessary  to  maintain  the  authority  of  law  against  illegal 
interference.  No  judicial  process,  whatever  form  it  may  assume, 
can  have  any  lawful  authority  outside  of  the  limits  of  the  jurisdic- 
tion of  the  court  or  judge  by  whom  it  is  issued ;  and  an  attempt  to 
enforce  it  beyond  these  boundaries  is  nothing  less  than  lawless 
violence. 

"We  are  sensible  that  we  have  extended  the  examination  of  these 
decisions  beyond  the  limits  required  by  any  intrinsic  difficulty  in 
the  questions.  But  the  decisions  in  question  were  made  by  the  su- 
preme judicial  tribunal  of  the  State ;  and  when  a  court  so  elevated 
in  its  position  has  pronounced  a  judgment  which,  if  it  could  be 


ABLEMAN  V.  BOOTH.  697 

maintained,  would  subvert  the  very  foundations  of  this  government, 
it  seemed  to  be  the  duty  of  this  court,  when  exercising  its  appellate 
power,  to  show  plainly  the  grave  errors  into  which  the  state  court 
has  fallen,  and  the  consequences  to  which  they  would  inevitably 
lead. 

But  it  can  hardly  be  necessary  to  point  out  the  errors  which  fol- 
lowed their  mistaken  view  of  the  jurisdiction  they  might  lawfully 
exercise ;  because,  if  there  was  any  defect  of  power  in  the  commis- 
sioner, or  in  his  mode  of  proceeding,  it  was  for  the  tribunals  of  the 
United  States  to  revise  and  correct  it,  and  not  for  a  state  court. 
And  as  regards  the  decision  of  the  District  Court,  it  had  exclusive 
and  final  jurisdiction  by  the  laws  of  the  United  States ;  and  neither 
the  regularity  of  its  proceedings  nor  the  validity  of  its  sentence 
could  be  called  in  question  in  any  other  court,  either  of  a  State  or 
the  United  States,  by  habeas  corpus  or  any  other  process. 

The  judgment  of  the  Supreme  Court  of  Wisconsin  must  therefore 
be  reversed  in  each  of  the  cases  now  before  the  court. 


INDEX 


[BEFEBENCES     ABE     TO     PAGES.] 

ABOLITION  OF  OFFICE— 

terminates  official  relation,  304. 
ACCEPTANCE  OF  OFFICE— 

how  manifested,  134. 

obligation  to  accept,  131,  247. 
ADMINISTRATIVE  DETERMINATIONS~ 

as  to  appraisals  of  customs  duties,  439. 

as  to  nuisances,  445. 

as  to  residence  for  taxation,  442. 

conclusiveness  of,  438. 

See  also  Nuisances. 

AGENTS— 

public,  not  personally  bound,  522. 
may  not  accept  bills  of  exchange,  504. 
when  government  bound,  363. 

APPOINTING  POWER— 

discretion  of,  may  not  be  taken  away  by  legislature,  195. 

power  of  removal  Incident  to,  263,  268. 
APPOINTMENT— 

governor's  power,  116. 

how  made,  14,  95. 

in  federal  government,  270. 

law  of.  84. 

legislature  may  make,  94. 

nature  of  power  of.  84. 

not  revocable,  103. 

president's  power  to  fill  vacancies,  123. 

what  is,  87,  95. 

when  complete,  99,  138. 

when  must  be  evidenced  by  writing,  95,  97. 
APPRAISAL  OF  MERCHANDISE— 

by  customs  officers,  when  final,  440. 

ASSESSMENT— 

when  notice  of,  to  person  affected  required,  399. 
ASSIGNMENT  OF  COMPENSATION— 

by  public  officers,  330. 
AUSTRALIAN  BALLOT— 

secures  secrecy,  51. 

699 


700  INDEX. 

[BEFEBENCES    ABE   TO   PAGES.] 

BAILEE— 

custodian  of  public  moneys  compared  to,  593. 
BALLOT— 

marks  invalidating,  59. 

origin  of  voting  by,  51. 

intention  must  be  clear,  60. 

printing  of,  58. 

BILLS  OF  EXCHANGE— 

authority  in  officer  to  bind  government  by  acceptance,  SOL 
BOARDS— 

of  canvassers 

controlled  by  mandamus,  66. 
duties  of.  66,  259. 

findings  of  prima  facie  evidence  of  election,  62. 
powers  of,  62, 
of  health 

power  to  abate  nuisances,  652. 
when  determinations  final,  457. 
majority  necessary  for  valid  action.  368.      ^ 
statutory  procedure  must  be  followed,  372.        ' 
BOND— 

blanks  in,  later  filled,  587. 
liability  to  government  on,  578. 
liability  to  third  persons  on,  569. 
of  de  facto  officers,  182. 
statutory  and  common  law  liability,  582. 
when  approval  of  enforced  by  mandamus,  140. 
when  principal  and  sureties  excused,  587,  593. 
CANDIDATE— 

effect  of  vote  cast  for  ineligible,  71. 
right  of  party,  to  place  on  ticket,  7B. 
CANVASSERS— 
See  Boards. 
CERTIORARI— 

character  of  act  reviewable,  649. 
courts  having  jurisdiction,  659. 
discretion  of  court,  655. 
other  adequate  remedy,  656. 
what  Is  reviewable,  656. 
will  not  issue  to  governor,  654. 
CIVIL  SERVICE  LAWS— 

commissions  under,  202. 
status  of  veterans,  85,  192. 
CLAIMS,  COURT  OP— 
Jurisdiction,  496. 
COLLATERAL  ATTACK— 

unconstitutional  statute  not  open  to,  159. 


INDEX. 
[rEFEBENCES     ABE    TO    PAGES.] 

COMMISSION  OF  APPOINTMENT— 

defined,  116. 

duty  of  ministerial  officer  to  issue,  116. 

conclusive  evidence  of  appointment,  100. 

prima  facie  evidence  of  title,  93. 

signing  of,  completes  appointment,  97,  101. 

transmission  of,  102. 
COMMITTING  MAGISTRATES— 

cause  of  commitment  examined  on  habeas  corpus,  690. 

COMPENSATION- 
SCO  Salary. 
assignments  of,  330. 
extra,  not  allowed,  243. 

CONSTRUCTION  OF  OFFICIAL  POWERS,  434. 

CONTEMPTS— 

power  to  punish  for,  vested  in  courts,  391. 

officer  disobeying  invalid  order  of  court  not  guilty  of,  266. 

CONTRACT— 

claim  to  salary  not  based  on,  305,  316. 

employee  of  state  is  under,  4. 

mandamus  may  not  be  used  to  enforce,  605. 

office  not  a,  7,  213. 

past  services,  claim  for  based  on  implied,  329.      / 

personal  liability  of  public  agent  for,  510. 

relative  to  public  offices,  when  void,  524. 

state  may  not  impair,  6. 

CONVENTIONS— 

of  political  parties,  73. 
COUNTY  COMMISSIONERS— 

not  removable  by  Impeachment.  293. 
CRIME— 

when  usurpation  of  office  is  a,  239. 
CRIMINAL  LIABILITY  OF  OFFICERS,  518. 

DEATH— 

of  a  member  of  a  board,  effect  of.  238. 
DE  FACTO  OFFICERS— 

acts  of,  when  valid.  174. 

cannot  be  two,  for  same  office,  157. 

county  commissioners  as,  157. 

intruders,  141. 

liable  on  bond,  182. 

no  claim  to  salary,  169. 

powers  and  rights  of,  167. 

result  of  payment  of  salary  to,  173. 

third  persons  no  right  to  resist,  181. 

under  unconstitutional  law,  160. 


701 


702  INDEX. 

[BETEBENCES    ABE    TO     PAGES.] 

DB  FACTO  OFFICERS— Continued. 

usurpation  of  office  by,  240. 

when  deputy  is,  157. 

who  are,  144. 
DB  JURE  OFFICER— 

can  recover  salary  from  de  facto  officer,  177. 

holding-over  officer,  when  a,  241. 

DISCRETION— 

of  court,  in  granting  certiorari,  655. 
unrestrained,  In  administrative  officer,  418. 
when  controlled  by  mandamus,  421,  605. 
writ  of  prohibition,  rule  as  to,  635. 
writ  of  injunction,  641. 

DISQUALIFICATION— 

acceptance  of  office  of  governor,  effect  of,  222. 

an  officer  may  not  appoint  himself,  232. 

holding  of  office  in  United  States  government,  227. 

incompatible  offices,  216.  . 

on  account  of  personal  interest,  350. 

DISTRESS—  ) 

process  of.  468. 

"DUE  PROCESS  OF  LAW— 
local  assessments,  400. 
removal  from  office,  258. 
taking  of  property,  409. 
summary  administrative  proceedings,  467. 
unrestrained  discretion  In  administrative  officer,  418. 

EDUCATIONAL  QUALIFICATION  FOR  HOLDING  OFFICE,  186. 

ELECTIONS— 

construction  of  laws,  56. 

findings  of  boards  of  canvassers,  64. 

for  governor,  241. 

frauds  at,  79. 

law  of,  27. 

laws  must  be  reasonable,  36. 

municipal,  47. 

must  be  held  according  to  law,  141. 

term  of  office,  must  be  fixed  before,  236. 

what  constitutes,  67. 

ELECTORS— 

equality  of,  42. 

validity  of  ballot  favored,  62. 

qualifications  of,  27,  34. 

ELIGIBILITY  TO  HOLD  OFFICE— 
See  Qualifications  fob  Office. 


INDEX.  703 

[bEFEBENCES    ABE    TO  PAGES.l 

EXECUTIVE— 

See  President,  Govebnob. 

EXECUTIVE  DEPARTMENTS— 
See  Heads  of  Depabthents. 

FRANCHISE— 

See  Vote,  Ballot. 

GENERAL  ASSEMBLY— 
See  Legislatube. 

GOVERNOR— 

acceptance  of  office  of,  effect  on  holding  other  office,  220. 

appointing  power  of,  18,  115. 

certiorari  will  not  issue  to,  654. 

holding  over,  status  of,  241. 

mandamus  to,  627. 

power  to  fill  vacancies,  122. 

removal  power  of,  256,  274. 

trial  for  impeachment,  303. 

what  included  in  grant  to,  of  executive  power,  261. 

writ  of  prohibition  to,  632. 

GOVERNMENT— 

when  liable  for  acts  of  officers,  491. 
when  may  be  used,  492,  510. 

HABEAS  CORPUS— 

after  indictment,  690. 

committing  magistrates,  687. 

courts  having  jurisdiction,  691. 

excess  of  jurisdiction,  678. 

judgments  of  courts,  675. 

power  of  supreme  court,  681. 

purpose  of  writ,  676. 

moral  restraint  not  sufficient,  673. 

physical  restraint,  670. 

release  by  federal  courts  of  one  held  under  State  authority,  692. 

HEADS  OF  DEPARTMENTS— 
appointing  power  of,  271. 
non-liability  for  official  communications,  538. 
position  of,  16. 

power  over  salary  of  subordinates,  310. 
when  controlled  by  mandamus,  105. 

HEALTH  LAWS— 

See  BoABDS  of  Health. 

HOLDING-OVER— 

position  of  officer,  241. 

rule  in  federal  government,  170. 


'^^  INDEX.  * 

[BEFEBENCES    are   to   PA0B8.] 

IMPEACHMENT— 
causes  for,  267. 
consequences  of,  300. 

county  commissioners  not  removable  by,  293. 
courts  having  Jurisdiction,  303. 
how  made,  268. 
in  federal  government,  287. 
of  president.  287. 

INCOMPATIBILITY— 

in  offices,  effect  of,  151.  224.  \ 

physical  impossibility  of  performing  duties,  217.  ] 

what  Is,  217,  224. 

INJUNCTION— 

discretionary  acts,  641. 

equitable  remedy,  638. 

nuisance,  when  abatement  of  restrained,  644. 

president  exempt,  648. 

rule  in  restraining  illegal  tax,  638.  \^ 

to  correct  abuse  of  power,  643.  \  • 

who  may  apply,  646.  ]  i 

INSPECTORS  OP  ELECTIONS—  j 

effect  of  findings  of,  64.  ' 

INTERSTATE  COMMERCE  COMMISSION—  i 

power  over  witnesses,  394.  I 

INTRUDERS—  i 

Into  public  office,  141.  I 

JUDGES—  ' 

non-liability  for  judicial  acts,  634. 
LEAVE  OF  ABSENCE— 

officer  on,  entitled  to  salary,  321, 
LEGISLATIVE  CONTROL— 

appointments,  86. 

elections,  32.  i 

offices,  17.  26.  i 

public  printing,  13.  ' 

qualifications  for  office,  184. 

removals  from  office.  255,  266. 

right  to  vote,  49. 

tenure  of  office,  7,  22. 
LEGISLATURE—  . 

non-liability  of  members  for  official  utterances,  540.  ' 

LIABILITY  OF  GOVERNMENT  FOR  ACTS  OP  OFFICERS,  49L 

at  common  law,  491.  i 

criminal  liability  of  officers.  518. 

civil  liability  of  officers,  520. 


INDEX.  705 

[BSFEBENCES    ABE    TO   FAOE8.] 

MAJORITY— 

necessary  for  valid  official  action,  368. 

MANDAMUS— 

acts  impossible  of  performance,  612. 

character  of  duty  enforceable  by,  603. 

courts  having  jurisdiction,  622. 

defined,  106. 

demand  and  refusal,  617. 

discretion  of  court,  627. 

effect  of  change  in  office,  619. 

interest  relator  must  show,  610. 

ministerial  acts,  140. 

rule  as  to  governor,  627. 

to  public  officers,  107. 

will  not  issue  to  president,  627. 

MARTIAL  LAW— 

non-liability  of  subordinate  for  acts  done  under  orders,  555. 

MAYOR— 

power,  to  prescribe  regulations  for  civil  service,  206. 

power  to  remove  for  cause,  279. 
MILITARY  SUBORDINATE— 

not  liable  for  acts  done  under  orders,  660. 
MINISTERIAL  DUTY— 

enforceable  by  mandamus,  605. 

MINISTERIAL  OFFICERS— 

liability  of,  547. 
MUNICIPAL  CORPORATIONS— 

construction  of  power  to  legislate,  379. 

elections  In,  47. 

existence  not  open  to  collateral  attack,  160. 

power  of,  over  nuisances,  377. 

NATURALIZATION— 
effect  of,  27. 

NOMINATIONS— 
to  office,  72. 

NOTICE— 

to  persons  affected  by  official  action,  399. 

NUISANCES— 

abatement  of,  455. 

injunction  to  restrain  abatement  of,  645. 
municipal  corporations  may  abate,  377,  478, 
power  of  boards  of  health  over,  445,  448,  652. 
summary  administrative  proceedings,  478. 

OATH— 

taking  of,  as  a  qualification  for  office,  185,  206. 

45 


f 


T06  IKDEX. 

[BEF£BENCE8    ABE   TO   PAOtS.] 

OFFICE— 

appointment  to,  89. 
defined,  1,  9.  12.  15.  211. 
distinguished  from  employment,  10. 
election  to,  68. 

existence  not  open  to  collateral  attack,  159. 
nominations  to,  72. 
party  position  is  not,  84. 
not  a  contract,  626. 
obligation  to  accept,  131. 
qualifications  for,  184. 
right  to,  when  taken  away,  217. 
vacancies  in,  how  filled,  121. 
OFFICERS— 

de  facto,  141. 
how  appointed  ,14. 
powers  and  rights  of,  167. 
right  to  office,  105. 

OFFICES—  ^ 

legislative  control  of,  17. 

contracts  relative  to  void,  525. 
OFFICIAL  RELATION— 

formation  of,  27. 

termination  of,  233. 
ORDINANCE  POWER— 

basis  of,  373. 
ORDINANCES— 

must  be  reasonable.  384«  428. 

PENSIONS— 

of  officers,  334. 

power  of  board  to  establish,  348. 

when  a  mere  gratuity,  344. 

when  right  becomes  vested,  338. 
POLICE  POWER— 

"due  process  of  law"  under  the,  412. 

legislature  may  create  monopoly,  19. 

POLITICAL  PARTIES— 
nominations  of.  72. 

POLITICAL  QUALIFICATIONS  FOR  OFFICE,  199. 

PRESIDENT— 

appointing  power  of,  272. 

discretion  of,  104. 

how  impeached,  287. 

mandamus  will  not  issue  against,  627. 

position  of,  623. 

power  of  removal,  101. 


INDEX.  707 

[BEFEBENCES    ABE   TO   PA0K8.] 

PRIMARY  ELECTION  LAWS,  79. 
PROHIBITION— 

corrects  only  excess  of  jurisdiction,  635. 

discretion  of  court,  635. 

is  a  preventive  remedy,  632. 

governor  not  subject  to,  632. 

power  subject  to,  635. 

PROPERTY— 

when  may  be  destroyed  by  summary  administrative  proceedings, 
479. 
PROPORTIONAL  REPRESENTATION,  40. 
QUALIFICATIONS  FOR  OFFICE,  131,  184. 

in  general,  184. 

educational,  186. 

political,  199. 

property,  186. 

power  of  legislature,  to  provide,  184. 

when  must  be  present,  208. 
QUO  WARRANTO— 

history  and  purpose  of,  663. 

title  to  office  tried  by,  243,  663. 

to  oust  incumbent  holding  improperly,  €69. 
RATIFICATION— 

when  binds  government,  495. 
REGISTRATION- 

as  a  qualification  for  voting.  35. 
REMOVAL  FROM  OFFICE}— 

for  cause,  257,  273.  * 

governor's  power  of,  261,  274. 

in  absence  of  legislative  provision,  261. 

incident  to  power  of  appointment,  268. 

not  deprivation  of  property,  257. 

power  of  legislature,  255. 

power  to  suspend,  282. 

president's  power  of,  101. 

RESIDENCE— 

administrative  determinations  as  to,  442. 

RESIGNATION— 

acceptance  of,  when  necessary,  248,  25L 
termination  of  official  relation  by,  244. 
what  is,  245. 

SALARY— 

actual  incumbency  merely  does  not  entitle  to,  172. 

assignments  of,  330. 

change  of,  322. 

de  facto  officer  has  no  claim  to,  169. 


708  INDEX. 

[BEFKREfTCKS    ARE    TO   PA0E8.1 

SALARY— Continued. 

de  Jure  officer  may  recover  from  de  facto,  177. 

leave  of  absence,  effect  of,  321. 

legislative  discretion,  7,  307. 

not  based  on  contract.  305. 

relation  to  work  done,  315. 

may  not  be  changed  during  term,  307,  323. 
SHERIFF— 

duties  of,  532. 

liability  on  bond,  570. 

power,  limited  to  own  county,  349.  . 
SUBORDINATES— 

military,  when  not  liable,  560. 

official  liability  for  acts  of,  562. 
SUMMARY  ADMINISTRATIVE  PROCEEDINGS,  46«. 
SUPREME  COURT— 

jurisdiction  of,  109,  659. 

power  to  Issue  habeas  corpus,  681. 
SURETY—  \ 

liability  of  on  bond,  313,  570,  587.  ) 

SUSPENSION— 

of  officer,  effect  of,  254. 

officer  under  indictment,  264. 

Implied  from  power  to  remove,  282^  28$. 
TAXES— 

enforcement  of  payment,  471. 

notice  of  assessment,  401. 

payment  as  a  qualification  for  voting,  31. 

when  levying  of  mandatory,  361. 
TENURE  OF  OFFICE— 

control  of  legislature  over.  7.  22. 

fixed  by  statute,  10. 

fixed  by  constitution,  21. 
TERM— 

expiration  of.  233.  244. 

length  of,  236.  263. 
TERMINATION  OF  THE  OFFICIAL  RELATION,  233,  244. 
TERRITORIAL  JURISDICTION  OF  OFFICERS,  349. 

TEST— 

what  is,  200. 

religious,  prohibited.  208. 

TORT— 

official  liability  for.  5^1. 

UNCONSTITUTIONAL  LAW— 
effect  of.  682. 


INDIiX.  709 

[references     ABE    TO    PAXJES.] 


VACANCIES— 

death  of  Incumbent,  129. 

defined,  150,  243,  250. 

governor's  power  to  fill,  114. 

holding-over,  121,  243. 

legislature  may  create,  304. 

power  to  appoint  to.  94.  121. 
VETERANS— 

preferences  accorded  to,  191,  199. 

VOTING— 

by  ballot.  50. 

in  municipal  corporations,  47. 

laws  regulating  must  be  reasonable,  35. 

party  primaries.  80. 

power  of  legislature  over,  29,  49. 

WITNESS— 

power  of  administrative  bodies  over,  390. 
WOMEN— 

constitutional  prohibition  on  voting,  31. 


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APR     6  1933 
SEP  25  1937 

NOV  12  1«3' 
DEC    11  1937 


LD  21-50m-l,'88 


YD039349 


228435 


J  i\^^/'. 


» 


tlMltltStM 


